Amulya Kumar Nandi, J.
1. This revision is directed against order No. 16 dated 14-6-91 passed by the Munsif, First Additional Court, Alipore in Title Execution Case No. 11 of 1990.
2. The decree holder-opposite party filed a suit for eviction on the grounds of reasonable requirement, sub-letting and default. On these several grounds trial court granted a decree for eviction on 30-5-69. The judgment-debtors-petitioners preferred an appeal being Title Appeal No. 1059 of 1969 which is still pending.
3. The judgment debtors filed an application under Section 17D of the West Bengal Premises Tenancy Act hereinafter called the Act on 22-12-69. Section 17D of the Act is reproduced :
'Power of Court to set aside decrees passed on account of default in the payment of rent.-(1) Where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, a decree for the recovery of possession of any premises was passed-
(a) in a suit under this Act, in which no order had been made under Sub-section (3) of Section 17 striking out, defence against delivery of possession, only on the ground referred to in Clause (i) of Sub-section (1) of Section 13, or
(b) in suit under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, by reason only of Clause (i) of the proviso to Sub-section (1) of Section 11 of that Act,
but the possession of such premises had not been recovered from the tenant by the execution of the decree, the tenant may within a period of sixty days from the date of commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, make an application to the Court which passed the decree to set aside the decree.
(2) Where an application has been made under Sub-section (1) for setting aside a decree, all proceedings in execution of the decree shall remain stayed until the application is disposed of.'
The judgment debtors filed an application for stay of hearing of their appeal until disposal of their application under Section 17D of the Act.
4. The decree holders levied execution of the decree in Title Execution Case No. 11 of 1991 on 24-3-90. Despite pendency of the application under Section 17D of the Act the court issued process by the impugned order for delivery of possession by breaking open the lock. The possession has, however, been delivered to the decree holder on 15-6-91.
5. Mr. Roychowdhury contends that under Section 17D(2) the court was statutorily bound to stay the execution. Since the court has delivered possession in violation of Section 17D(2) of the Act this court should set aside the impugned order and order restoration of possession to the judgment debtors. His second branch of argument is that the execution case was barred by limitation under Article 136 of Limitation Act the execution case having been levied long after twelve years from the date of the decree.
6. On perusal of the judgment of the trial court it will be found that decree for eviction was granted on grounds other than default, viz, reasonable requirement and sub-letting. Section 17D of the Act can be invoked only in a case of a decree on the ground of default. Therefore the application under Section 17D of the Act was not bona fide. It was merely a device to delay the proceeding. Mr. Roychowdhury contends that this court is not entitled to look into the application under Section 17D of the Act since it is pending decision of the trial court. I am unable to subscribe the view of Mr. Roychowdhury. The court cannot afford to overlook the patent abuse of the provision of law. It is patent that Section 17D of the Act has no application in the instant decree. On this ground alone the first submission of Mr. Roychowdhury fails.
7. Mr. Banerjee contends that the plea of limitation is equally untenable. It is no case of the judgment debtors that the notice under Order 21 Rule 22 C.P.C. was not served upon them. They do not urge either that they filed any objection against the execution. So the court was bound to proceed with execution under Order 21 Rule 23 C.P.C. In this connection Mr. Banerjee refers to the provision of the period of limitation of execution under Section 48 C.P.C. which has since been repealed under limitation Act of 1963. A Division Bench of this court in Prokash Chandra v. Baroda Kishore, 38 CWN 848 opined that entertainment of an application for execution beyond the period of limitation in contravention of Section 48 C.P.C. cannot be held to be without jurisdiction. It is a matter of erroneous decision. As a matter of fact in Aswini Kumar v. Karamat Ali : AIR1948Cal165 the learned Single Judge of this court overruled the plea of limitation taken belatedly. The judgment debtors did not oppose the execution nor did they prefer to plead limitation before the executing court. Now they cannot turn round to say that possession has been delivered overlooking the bar of limitation. They come too late in the day to urge the plea while the execution case has ended in satisfaction.
8. In view of the foregoing reasons the revision application fails and it is dismissed accordingly.