JUDGMENT Edgley, J. - The only point for consideration in this appeal is whether or not a certain decree for ejectment of the Defendants should be stayed having regard to the terms of sec. 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. In the suit out of which this appeal arises the Plaintiff's case was to the effect that the tenancy had terminated as a result of a notice of ejectment. The Plaintiff, therefore, claimed to eject the Defendant and also claimed certain arrears of rent. The decree of the trial Court was to the effect that khas possession should be granted to the Plaintiff and the claim for rent should be allowed. This decree was affirmed by the lower Appellate Court. 2. Although it was urged in the trial Court that the suit should be stayed under the provisions of sec. 3 of the Bengal Non-Agricultural Tenancy Act this point does not appear to have been pressed in the lower Appellate Court, and it has been urged on behalf of the Respondents that in these circumstances it is not open to the Appellant now to press this point in Second Appeal. We are not in agreement with the learned Advocate with regard to this matter having regard to the mandatory nature of the language which is used in sec. 3 of the Act. The point which now requires consideration was fully discussed in a recent judgment of this Court (delivered on the 2nd of July, 1946) in the case of Messrs. Gangji Sajun & Co. v. Lalji Agarwalal Jain (1946) 51 C. W. N. 131 (Second Appeal No. 614 of 1942) to which I was a party, and in that judgment it was stated that On a consideration of the Section we are of the opinion that its main provisions are intended to protect a non-agricultural tenant who is sought to be evicted on grounds other than non-payment of rent, so that in a suit for ejectment of such a tenant if there are claims for rent, manse profits or damages, and the entire suit is proceeded with, the execution of the decree in so far as it relates to ejectment will have to be stayed. In a suit for ejectmont against a non-agricultural tenant who has defaulted in payment of rent and a decree is passed against him on the ground of non-payment of rant, such a tenant is also protected from] eviction by the remedy prescribed in the proviso to section 3, if he avails himself of the conditions laid down therein. 3. In view of the decision in the above cited case, this appeal must be allowed in part and we direct that execution of the decree of the trial Court be stayed in so far as it relates to ejectment for the period in which the Act continues in force, and that it will proceed so far as it relates to recovery of arrears of rent and damages for use and occupation up to, from the date of the decree of this Court. The parties will bear their own costs. Blank, J. I agree.