Judgment 1. THIS Rule was issued on an application under Section 115 of the Code of Civil Procedure against Order No. 38 dated 4th of December 1972 passed by the Judge, 7th Bench, city Civil Court, Calcutta, in Ejectment suit No. 2441 of 1962. By that order the petitioner's application under section 17e of the West Bengal premises Tenancy Act was rejected. The suit was decreed on 25th of June 1965. Being aggrieved, the petitioner preferred an appeal in this court in 1967 being F. A. 332 of 1967. 2. ON 6th of March, 1910, Act 1r of 1970 with a new Section 17e came into force. The present application under Section 17e was filed by the petitioner on 23rd of April 1970. F. A. No, 332 -of 1967 was dismissed by this court on 9th of September 1971. This matter was heard by A. C. Ray, J. on 16th of November 1973. His Lordship observed that one of the questions involved in this case was on the effect of Section 17e. There are judgments of Division Bench of this Court and also some are pending before the Supreme Court. As such the matter was referred to the Division Bench. Mr. Ashoke Kumar Sen Gupta, learned Advocate appearing on behalf of the petitioner, submits that the learned court below held that the application was not maintainable in view of the decision reported in 76 C. W. N. 743 (Amal Chandra Chatterjee v. Promod Kumar Banerjee. This is a bench decision and it has been held that Section 17e of the West Bengal premises Tenancy Act, 1956 in so far as it operates retrospectively is ultra vires and is invalid. This being the decision of this Court, it cannot be said that the learned court below was wrong in rejecting the application relying on the above decision. Mr. Sen gupta submits that against this decision the aggrieved party has preferred an appeal in the Supreme Court and that appeal is pending for decision. It has further been submitted by Mr. Sen Gupta that the decision in the case referred to above was based upon the decision in Sailendra Nath Ghosh v. Sm. Ena Dutta, reported in A.I.R. 1971 Calcutta 331 which was heard analogously with the case of B. Banerjee v. Sm. Anita Pan reported in A.I.R. 1975 S.C. 1146. The Supreme Court in B. Banerjee v. Sm. Sen Gupta that the decision in the case referred to above was based upon the decision in Sailendra Nath Ghosh v. Sm. Ena Dutta, reported in A.I.R. 1971 Calcutta 331 which was heard analogously with the case of B. Banerjee v. Sm. Anita Pan reported in A.I.R. 1975 S.C. 1146. The Supreme Court in B. Banerjee v. Sm. Anita Pan and Kamal lal Ghosal v. Sm. Ena Dutta overruled the Division Bench decision of this court. Therefore, it is submitted that the foundation for pronouncing section 17e of the Act as ultra vires no longer subsists. 3. MR. Dhandhania, learned Advocate appearing on behalf of the opposite party, contends that the application was rightly rejected by the learned court below. Even assuming that section 17e has retrospective operation even then the present application under Section 17e is not maintainable because the decree in the F. A. No 332 of 1967 was passed long after the introduction of Section 17e. In this connection it is submitted that the decree of the trial court was merged in the decree of the appellate court and after the decree passed by the appellate court it is only the decree of appellate court which can be executed. In support of his contention Mr. Dhandhania refers to a Supreme Court decision reported in A. I. R. 1974 S. C. 1380 (M/s. Gojer Brothers (P) Ltd. v. Shri Ratan lal Singh. In this case their Lordships referred to the findings of the high Court and held that "where the decree of the trial Court is carried in appeal and the appellate court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the trial court. The reason for this rule is that in such cases the decree of the trial court is merged in the decree of the appellate court. The reason for this rule is that in such cases the decree of the trial court is merged in the decree of the appellate court. " it was further found "thus where the decree for possession of the premises was passed by the trial court in 1958 but that decree was taken in first appeal where it was confirmed, and then in second appeal, the High Court, after a contested hearing, dismissed the appeal and confirmed the decree of the first appellate court in 1969, that is, after and not before the commencement of the 1968 Act, the decree of the trial court must be taken to have merged in the decree of High Court, and it was the decree of the High Court Which was only executable. It was therefore mot liable to be set "aside under Section 17d". It is true that the present application was filed under Section 17e, but we find that in Section 17d it has been provided that "where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968' a decree for the recovery of possession of premises was passed. . . . . . . . . . . . ". The opening words of Section 17e are similar. Section 17e begins "where before the commencement of the West Bengal Premises Tenancy (Second amendment) Act, 1969, a decree for the recovery of possession of any premises was passed. . . . . . ". Thus it is seen that both in sections 17d and 17e it has been -provided that an application is maintainable for setting aside a decree which was passed before the commencement of the Amendment Act. As in the present case the decree of the appellate court was made long after Section 17e came into force. It must be held on the principles laid down by the Supreme Court that the decree passed by the trial court merged in the decree of the appellate court and that being so, the application under Section 17e is not maintainable. 4. MR. Sen Gupta, in this connection relies on the decision reported in 1976 (1) C. L. J. 325 (Sushil Chandra ray Choudhury v. Sambhu Nath Saha. In that case it was held that even when an appeal is pending, the trial court retains its jurisdiction to set aside a decree under Section 17e. 4. MR. Sen Gupta, in this connection relies on the decision reported in 1976 (1) C. L. J. 325 (Sushil Chandra ray Choudhury v. Sambhu Nath Saha. In that case it was held that even when an appeal is pending, the trial court retains its jurisdiction to set aside a decree under Section 17e. It was further held that there was no question of merger of the judgment of the trial court in the judgment of the appellate court. In the present case when the application was taken up for hearing, the trial court decree already merged in the appellate court decree and that decree was passed after Section 17e came into force. For the reasons stated above we accept the submission made by Mr. Dhandhania and hold that the application under Section 17e is not maintainable. In the result, the application fails and the Rule is discharged, there will be, however, no order for costs. Rule discharged.