Deokaran Agarwalla vs Satyadhan Ghoshal

Roxburgh, J.—This is a Rule against an order of the Munsif, First Court, Alipore, rejecting applications dated January 30 and July 31, by the present Petitioner. The applications were made in execution proceedings conducted by the decree-holders in Title Execution Case 15 and of 1949 of the court. They had obtained a decree against one Satyadhan Ghoshal and others for ejectment from certain land. The present Petitioner''s contention is that the decree-holders are the trustees of the Bhukailash Debattar Estate; Satyadhan Grhoshal himself being one of them, and being the tenant in respect of the land in question. Satyadhan had granted a lease in favour of one. Eashananda Jana. and the Petitioner had purchased the tenancy interest of Eashananda Jana in Title Execution Case No. 26 of 1948, based on a decree in a suit (Title Suit 463 of 1945) filed by Satyadhan Ghoshal against Rashananda. When the decree-holders in Title Execution Case No. 159 of 1949 went to eject Satyadhan, they were resisted by the Petitioner who then came to court and filed his application of January 30, 1949, in which he appeared to take the position that he was a sub-lessee. In the later application of July 31, however, he added a contention that his lease was governed by the Bengal Tenancy Act. In his application, he prayed that the decree-holders'' application to the court for police help to obtain possession of the land should be treated as an application under Order XXI, Rule 97 of the Code of Civil Procedure.

Relying on the case of Yusuf v. Jyotishchandra Banerji (1931) ILR 59 Cal. 739, and without taking any evidence but relying on the supposed admission of the present Petitioner in his application of January 30, the trial court has held that, as he has admitted that he is a sub-lessee, he is bound by the decree in the terms of Order XXI, Rule 35, Civil Procedure Code, and his application was, therefore, rejected.

The case cited mainly discusses the question as to whether a sub-lessee is bound by the decree within the, terms of Order XXI, Rule 35, Civil Procedure Code. In that particular case, the objector had apparently clearly said that he was a sub-lessee holding a birhi shop in a small room on the premises of which possession was sought to be obtained in the execution. He also contended in his application that the proper procedure for the decree-holder was to apply under Order XXI, Rule 97, Civil Procedure Code. There is not a great deal of discussion on the latter aspect of the matter. As I have said, the main discussion is on the question as to whether a sub-lessee, though not a party to a'' decree for ejectment, is bound by it. It is to be noted that, in '' the decision cited, further support for the action taken by the court was that, under an order of the munsif, the Applicant was to have deposited a sum of Rs. 240 by a certain date to have stay of proceedings for delivery of possession and he had failed to do so. Graham J. also remarked that he did not find such merits. in the case as would justify the court in interfering in the exercise of its powers of revision. With great respect, I have some difficulty in appreciating how the question whether a sub-lessee is liable to be evicted in execution proceedings instituted against his intermediate lessee is not one properly for decision under Order XXI, Rule 97. Or to put it in another way, I fail to see why a landlord who comes to court and says he'' has been resisted in obtaining possession in execution and makes the ex parte statement that the register is a sub-lessee should, thereupon, automatically be entitled to the exercise of all powers of the court with the aid of the executive, police, army op whatever-may be required to. obtain possession. I should have thought prima facie the object of Order XXI, Rule 97, was to have questions decided where there was resistance and that, before the court proceeded to use greater powers to enforce its decree, it should first hear the resister and decide what merits there were in his claim for resistance. Certainly, if all that the resister could say was a sub-tenant, he would be held to be bound, by the. decree and then, under the provisions-of Rule 98, the court would proceed to give such further assistance as was necessary to the decree-holder and, in the event of further resistance, detain. the resister in the civil jail. It is to be noted that'' Rule 98, strictly-speaking, only allows such powers to be enforced if the court, finds that the resistance was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or. on his behalf. In other words, strictly speaking, where the resistance is by a sub-lessee, no such power is given. However, ordinarily, I think the court would, in view of the provisions of Order XXI, Rule 35, be undoubtedly correct in enforcing the decree against the resister. Rule 98 clearly, contemplates that resistance may be by a judgment-debtor or some other personating a this instigation or on his behalf, and contemplates the landlord, coming to court to have his decree executed despite the resistance of such persons. I cannot see how, therefore, a sub-lessee who is surely in a stronger position than the judgment-debtor whatever claim he may have in the matter, should not have it decided under the provisions of Order XXI, Rule 97 and 98. In the ''case'' cited, some mention was made of the transferee and this Was disposed of by saying that the case of transferee pendente lite is governed by Rule 102. One would have thought that his-position was even less-strong than that of the sub-tenant. At any rate, the only reason why the provisions of Rule 102 are enacted is clearly because the transferee pendente lite is in fact bound by the decree.

I think, perhaps some of the confusion in this matter arises out of the fact that the CPC provides a system of execution by the court itself. If the execution were not by the court itself, I think there would be no doubt in any one''s mind that the authority, the Sheriff or whatever it might be, executing a decree, finding himself resisted, would not immediately seek the aid of the police or the army or whatever might be required in order to enforce the decree but would go to court and point out the difficulty in execution of the decree and the landlord, would then be required to take action under Order XXI, Rule 97 before the court gave any further orders for any further '' force to be used for the purpose of executing the decree.

The matter may be put in another way. The contention under discussion would appear to be that the landlord is only to make an application under Order XXI, Rule 97, where he is bound to fail. In cases where he will succeed, it is not necessary for him to make the application.

However this may be, in the present case, all that the Petitioner really wants is that the effect of the learned munsif''s order will not prejudice his position in so far as the munsif appears to have stated or found that the Applicant admits that he is a sub-lessee and, therefore, he has no right to resist the execution at all. In the later petition of July 31, the Petitioner''s case is expanded and he considers that he has a case which really requires proper consideration. In so far as his application to the court was one that the landlord''s application for, police force should be treated as one under Order XXI, Rule 97, I am clearly of opinion that it was not maintainable. In so far as it was a petition to the court suggesting that the court should hesitate to give further assistance by the use of greater force to the landlords without their taking action under. Order XXI, Rule 97, it was, in my opinion, quite a reasonable petition, and I still consider that the court would be well advised not to take further action on those lines, unless the landlord, in fact, does make such application. If the landlord does not make such an application, the matter will rest there and he will not obtain possession.

I may point out that I have had to consider this matter recently in several cases arising out of the West Bengal Premises rent Control Acts under which the position of the sub-lessee has been materially altered, but the courts, acting on the lines which, appear to have been held to be correct, have, in my opinion, quite wrongly, shown a tendency to ignore the position of the sub-lessee, although under the new law he appears to have quite an independent right, and the courts have been taking. action to throw him out forcibly, telling him that he has a remedy under Order XXI, Rule 100 after he is dumped out on to the street and removed from his residence. I have pointed out that, in my opinion, it is not the correct procedure to be adopted.

In any case, the principle of audi alteram partem seems to me always to apply and that the courts should hesitate to grant landlords, on their ex parte statements, unlimited force in order to put the decree into execution where once, the court understands that there is resistance to that execution.

The Rule is accordingly discharged. I make no order as to costs.