JUDGMENT 1. THIS is a petition under section 115 of the Code of Civil procedure against an order under section 17a of the West Bengal Premises Tenancy Act of 1956. The facts of the case so far ay they are relevant for our present purpose may be briefly stated as follows : - 2. THE petitioner was a defendant in a suit for ejectment. The plaintiff instituted the suit on the ground that she was allowed to occupy the flats in suit as a tenant for her residence by reason of her being in the service of the plaintiff landlord and that her service being dispensed with she was liable to be evicted. While the suit was pending in the trial court, rent for the months of December, 1960 and January and February, 1961 were deposited with the Rent Controller in contravention of the provision of sec, 17 (1) of the Act as it then stood ; the defendant should have deposited rent in the court and not with the Controller. The defense was struck out and the suit thereafter was decreed on the 10 august 1962. An appeal was filed in this Court against that judgment. On the 24th August, 1965, West bengal Ordinance No. VI of 1965 (The west Bengal Premises Tenancy (Amendment) Ordinance, 1965) came into force and the coming into effect of that Ordinance on the 24th August 1965 was neither known to herself nor to her lawyer and this Court on the 25th august, 1965 passed a decree affirming the decree for ejectment of be court below and on her undertaking, granted her time to vacate till 31st December, 1965. 3. ON the 15th November, 1965 the petitioner defendant filed an application under section 17a now under consideration and she applied for relief under the provision of that Ordinance. The relief prayed for was refused and hence she has moved this Court under section 115 of the Code of Civil Procedure against the order rejecting the petition under section 17a of the West Bengal Premises Tenancy Act. 4. SECTIONS 5 and 6 of the ordinance are relevant for our present purpose. Section 5 of the Ordinance provided for the amendment of section 17, sub-section 1. Clause (a) of section 5 of the Ordinance of not relevant for our purpose. 4. SECTIONS 5 and 6 of the ordinance are relevant for our present purpose. Section 5 of the Ordinance provided for the amendment of section 17, sub-section 1. Clause (a) of section 5 of the Ordinance of not relevant for our purpose. Clause (b) of section 5 is as follows :- "in sub-section (1) of section 17 of the said Act - (b) for the words "deposit in Court or pay to the landlord," the words "deposit in Court or with the Controller or pay to the landlord" shall be, and shall be deemed always to have been substituted. " Therefore, section 5, sub-section (b) was retrospective in its operation and it would apply to all pending proceedings. Hence, as the appeal in the High Court was pending on the date of the Ordinance, section 17 (1) of the Act as amended by section 5 (b) of the Ordinance would be applicable. Section 5 of the Ordinance in substance provides that in all pending suits or appeal, the amendment of section 17 (1) would apply. Hence, the appeal court would have power to set aside the order directing the striking out of the defense if rent was deposited with the Rent Controller in contravention of section 17 (1) as it stood before the amendment. It need not be added that the amendment was possibly the result of an observation made by the supreme Court in the case of (1) Kaluram Omkarmal v. Baidyanath Gorain, reported in AIR 1965 SC 1909 . Under section 5 of the Ordinance no relief could be granted to erases which were disposed of finally and not then pending either in the trial court or in the appeal court. Therefore, in order to give effect to the same intention of the legislature as was disclosed in section 5 of the Ordinance further provision was made by adding section 17a whereby relief was given on the same ground to cases where defence was struck out an under section 17 (i) as it stood before amendment and where possession of the premises was not recovered. It is now relevant to refer to section 17a. It is now relevant to refer to section 17a. That section is as follows: - "where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under sub-section (3) of the section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, for setting aside such decree or order " If such an application was filed, the power of the court was denned in sub-section (3) (b ). If after considering such evidence as the parties may adduce "the court is satisfied that no order for striking out the defence against delivery of possession would have been made in the suit or proceeding under sub-section 3 of section 17 if the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 had been in force on the date on which such order was made, the court shall determine the amount which would have been payable by the tenant for the period commencing from such date and ending with the date of order to be made under this sub-section, if the tenant had to pay, month to month, a sum equivalent to the rent at the rate at which it was last paid, and after deducting there from all sums as the tenant may have deposited in court or with the Controller or paid to the landlord for such period, the court shall direct the tenant, by order to deposit the remaining amount at court within thirty days from the date of the order. " Hence, section 17a would apply provided following conditions are satisfied (a) where a decree has been passed in a suit for ejectment before the Ordinance came into force, i. e. where a decree for ejectment was passed before the 24th August, 1965, (b) if in that suit defence against delivery of possession was struck out under sub-section 3 of section 17 in a manner contrary to the provisions of the Ordinance, (c) if possession of such premises was not recovered from the tenant by execution of the decree or order at the date when the Ordinance came into force, viz. if possession was not delivered in execution of the decree before the 24th August, 1965. If the aforesaid conditions are satisfied, the tenant may make an application to the court 'which made such decree or Order, i.e. to the court which passed the decree before the Ordinance came into force, (b) provided further the application is made within the period of sixty days from the commencement of the West bengal Premises Tenancy (Amendment) Ordinance, 1965. 5. REFERRING now to the circumstances of this case, the decree for ejectment was passed by the trial court before the 24th August, 1965. But the decree of this court was passed after the 24th August, 1965. Therefore, at the date when the Ordinance came into force the only decree was the decree passed by the trial court. But the matter was pending in appeal. Secondly, in this suit for ejectment the defense was struck out contrary to the provisions of the Ordinance. It is further true that possession was not delivered in execution of such a decree before the Ordinance came into force. Hence, it would appear that an application to the trial court would be maintainable. 6. MR. Dutt who has appeared for the opposite party landlord urges that the "decree for recovery of possession referred to in section 17a refers to the "final" decree that has been passed in the proceeding. It does not, according to Mr. Dutt, refer to any decree that was made in the proceeding. Undoubtedly, it does not refer to any decree made in the suit, but it refers only to a decree for ejectment passed in the suit. It may happen that no decree for ejectment was passed in the trial court ; but a decree for ejectment was passed in the appeal court. Undoubtedly, it does not refer to any decree made in the suit, but it refers only to a decree for ejectment passed in the suit. It may happen that no decree for ejectment was passed in the trial court ; but a decree for ejectment was passed in the appeal court. In that case, it would be difficult to say that the application would lie in the trial court because the decree of the trial court was not for delivery of possession and secondly, that decree of the trial court was superseded by the decree of the appeal Court. But the question is if the trial court passed a decree and that decree be affirmed in appeal, would section 17a refer to the decree of the trial court or refer to the decree of the appeal court ? It is urged by Mr. Dutt that the decree passed by the appeal court is the final decree in the proceeding and in every case that is the decree which has to be set aside and therefore the application must be made to the court in which that decree was passed. Referring again to the circumstance of this case on the date when the Ordinance came into force there was only the decree of the trial court and the matter was pending in appeal. But before the date of the application under section 17a, the appeal court passed a decree. Hence, according to Mr. Dutt, on the date of the application, the decree of the trial court merged in the decree of the appeal court and so no application would lie to the trial court. Mr. Ghose, on behalf of the petitioner, refers to section 37 of the Code of Civil Procedure. According to Mr. Chose, the phrase 'where a decree has been made' means the same thing as the phrase 'the court which passed a decree' within the meaning of section 37 of the Code of Civil Procedure and Mr. Chose therefore suggests that the same meaning should be given to the phrase 'the court which made the decree' in section 17a and it would refer to the trial court. Chose therefore suggests that the same meaning should be given to the phrase 'the court which made the decree' in section 17a and it would refer to the trial court. But section 37 of the Code specifically says that the phrase 'the Court which passed a decree' would be 'deemed to include where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance'. There is no provision like that in section 17a. Section 17a undoubtedly states that the tenant may make 'an application to the court which made such decree' and Mr. Ghose is right when he says that the court which made such decree means the same thing as the court, which passed a decree. But there is a definition in section 37 of the Code for the phrase 'the court which passed a decree' and there is no such definition in the section 17a. It is difficult to apply the definition of a phrase in a statute to another statute which does not incorporate the said definition. 7. MR. Ghose next urges that the definition of similar words in a statute amending the Calcutta Thika Tenancy Act should also be referred to. But it is always a risky affair to interpret one section of one statute in the manner as another section in another statute. It is true that statutes which are in pare material may be referred to in aid of interpretation, but they are no sure tests particularly where different statutes use different languages ; where there is a definition or an explanation to a particular phrase in a statute, it is difficult to apply that definition or explanation to some other statute. Section 5 of the amending Act to calcutta Thika Tenancy Act has an explanation for a similar phrase. But here there is none and we cannot apply an explanation or a definition included in one statute to another which contains no such explanation or definition, it is for us to interpret the language of the statute in question, 8. IF we refer to the context of section 17a which is section 6 of the Ordinance, we may refer to section 5 of the Ordinance ; we will find that the legislature has provided in section 5 of the Ordinance that the section 17 (i) as amended would apply to all pending proceedings. IF we refer to the context of section 17a which is section 6 of the Ordinance, we may refer to section 5 of the Ordinance ; we will find that the legislature has provided in section 5 of the Ordinance that the section 17 (i) as amended would apply to all pending proceedings. If that was their intention they would not again in section 17a have referred to pending proceedings as well as to proceedings which have terminated. In this case the proceeding was pending inasmuch as the appeal was pending though the proceeding in the trial court was terminated; the word 'suit' includes appeal so the suit would be pending in appeal and therefore that would be a case which would attract section 5 (b) of the Ordinance. It was not intended to provide for that again in section 17a. Section 17a refers to a decree which has been made and in which possession has not been delivered which evidently imply that the suit is not pending either in trial or in appeal but there may be pending execution of the decree passed in the suit. Hence, in my opinion, section 17a excludes all cases where the suit itself is pending or an appeal in the suit is pending but includes all cases where a decree has been finally passed either in the suit or in the appeal before the Ordinance came into force and where the execution has not been satisfied by delivery of possession. I would, therefore, hold that the present application was not maintainable under section 17a in view of the fact that the suit itself was then pending in appeal. The next question is whether the phrase 'a decree or order' in section 17 (A) refers to the 'decree or order' which has been finally made in the proceeding. In that case, it would include a decree passed in appeal even though it affirms the decree of the trial court or of another court of appeal. The word 'decree' in section 17 (A)-it is urged by Mr. Dutt-does not refer to a decree which is subsequently merged or is superseded by another decree in appeal. In that case, it would include a decree passed in appeal even though it affirms the decree of the trial court or of another court of appeal. The word 'decree' in section 17 (A)-it is urged by Mr. Dutt-does not refer to a decree which is subsequently merged or is superseded by another decree in appeal. The proposition has been settled by this Court as far back as 1871 when a Full Bench of this Court in the case of (2) Ram Chandra Bysack v. Luckhee Kant Barnick reported in 16 Weekly Reporter page 1 of the Full Bench Rulings whore this Court decided that where a decree of the lower court is reversed or modified or affirmed the decree passed by the appeal court is the final decree in the suit and it was held to be the only decree which was capable to be enforced by execution. The Judicial Committee in the case of (3) Kristo Kinkur Roy v. Rajah Burrodacaunto Roy reported in 14 moore's Indian Appeals at page 465 did not dissent from that view and further said that the question was not "reintegrate" when their lordships decided the matter in 1872. Their lordships considered whether a decree that was passed in the appellate court would be regarded as a direction to the lower court to make and execute a decree of its own accordingly. But their lordships referred to the provisions of sec. 360, 351 and 362 (a) of the then Code of Civil Procedure and held that the said Code of Civil Procedure would exclude the aforesaid notion. Hence, according to their lordships, the original decree would be considered to be merged or incorporated in the decree of the appellate court (vide page 490 ). Their lordships however at page 492 suggested that the decree of the appeal court may expressly embody in the decree of affordance so much of the decree of the court below as was intended to affirm and thus avoid the necessity of referring to a 'superseded decree'. According to their lordships, therefore, the decree of the trial court is superseded by the decree of the appeal court and that decree of the trial court is merged or incorporated in the decree of the appeal court no matter whether the decree of the appeal court be a decree of affordance or a decree of modification or a decree of reversal. I think it is necessary to make it clear that the decree of the appeal court must be a decree which judicially determines the matter and not merely an order by which the appeal is dismissed In the case reported in (4) Batuk Nath v. Munni Dei, 18 CWN 740 (PC), the appeal was dismissed for non-prosecution by the Judicial Committee. Sir John Edge in delivering the judgment of the court said "there was however no order of His Majesty in Council dismissing the appeal nor was it necessary that any such order should be made in the appeal. Under rule 5 of the order in Council of June 13, 1853 the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order". Again in a case reported in (5) Abdul Majid v. Jawahir Lal, 18 CWN 963 (PC), Lord Moulton observed as follows : - "the chief matter of argument before this Board was a contention that the decree which it is sought to enforce had. been constructively turned into a decree of His Majesty in Council and assigned to the date of May, 13, 1901 by virtue of the dismissal of the appeal for want of prosecution on that date, and " Therefore, their lordships observed as follows :- "their lordships see no foundation for this contention which appears to have been the basis of the decision of the court below. The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was opened to him, and that therefore he was in the same position as if he had not appealed at all. " Hence, the word 'decree' in section 17a would mean a decree which is final. That decree may be a decree of the trial court if there is no appeal, a decree of the trial court again if the appeal has been dismissed for default. " Hence, the word 'decree' in section 17a would mean a decree which is final. That decree may be a decree of the trial court if there is no appeal, a decree of the trial court again if the appeal has been dismissed for default. If there be a first appeal, it means decree of the appellate court where by that decree the rights of the parties were judicially determined no matter whether it was one of affordance or variation or reversal ; it would also be the decree of the first appeal court if the second appeal was dismissed for default but it would be a decree of the second appellate court if the second appellate court judicially determines the rights of the parties. If the appellate court had dismissed the appeal under Order 41, Rule 11 of the Code, the word "decree" may not refer to that order. If a special (second) appeal be dismissed the appeal court may dismiss the appeal simply and may abstain from confirming a decree erroneous or questionable but not open to examination by reason of the special and limited nature of the appeal In such case, according to (3) 14 MIA 465 at 492, the order or the decree of the appeal court may not be the final decree. In the instant case, the word 'decree' would therefore refer to the decree of the appellate court in which decree was passed before the application under sec. 17a was filed. but after the Ordinance came into effect. 9. HENCE, in my opinion, section 17a would not apply for the reason that the matter was pending in appeal on the date the Ordinance came into force and further at the date of the application there was a decree of the appellate court but that decree was passed subsequently to the Ordinance and therefore it would not be a decree for ejectment which 'has been made' before the Ordinance came into force. 10. FOR the aforesaid reasons the rule is discharged. The operation of the stay order granted by this court in this Rule will continue to be effective for a week from this date. The Rule is discharged with costs hearing fees being assessed at three gold mohurs.