The judgment of the Court was as follows:
Bachawat, J.:— The dispute relates to one room in the ground floor of premises No. 22/1A, Ram Chand Ghose Lane, Calcutta. The plaintiff instituted a suit for ejectment against several persons. Defendant No. 1, Dinesh Chandra Ghose, who was admittedly the tenant under the plaintiff was the principal defendant. The plaintiff impleaded five other defendants, alleging that they were either sub-tenants or trespassers. The petitioner Gaya Nath Ghose was defendant No. 2. He filed a written statement and asserted that he was a subtenant. Defendant No. 3, Badal, defendant No. 4, Rakhal alias Sukhendu, defendant No. 5, Gouranga and defendant No. 6, Rai Mohon, asserted that they were not sub-tenants and had no interest in the premises. Defendants 2 to 6 contended that they were not necessary parties to the suit. On the 13th January, 1956, the plaintiff filed a petition stating that defendants Nos. 2 to 6 had asserted a sub tenancy in their favour in a previous criminal proceeding and that the question whether the sub-lease was legally binding on the plaintiff requires to be adjudicated in order that the plaintiff might obtain an effective decree for possession. The plaintiff, therefore, prayed that defendants Nos. 2 to 6 should be retained as parties. By the order dated the 13th January, 1956 the learned Judge directed that the names of defendants Nos. 2 to 6 be struck out from the record holding that they were neither necessary nor proper parties. On the 3rd February, 1956, the plaintiff obtained a decree for possession against defendant No. 1. On the 8th March, 1956, on the application of the plaintiff, a writ of possession in Form No. 11, Appendix E of the Code of Civil Procedure was issued. Delivery of possession under this writ was resisted. The bailiff's report shows that Sukhendu Kumar Ghose and his sister resisted execution.
1. By his petitions dated the 19th March, 1956 and the 21st March, 1956, the plaintiff applied for an order under Order 21, rule 97 of the Code of Civil Procedure and for police help against (1) the judgment-debtor Dinesh, (2) Sukhendu and (3) his sister, Sovarani. The decree-holder prayed for police help and in the alternative for detention of Sukhendu and Sovarani. Notice was issued on the opposite parties to show cause. On the 24th April, 1956, the petitioner Gaya Nath filed a petition stating that he was a sub-tenant, that he was impleaded as a party to the suit as a sub-tenant and that resistance was given by Sukhendu and Sovarani on his behalf and asked for time to file his objection. The learned trial Judge rejected this petition of Gaya Nath, holding that he had no locus standi. He then passed the following order:
“This case is allowed exparte with costs. Pleader's fee Rs. 10 only. Prayer for police help is allowed. Police be written to the decree-holder be put into possession.”
2. Gaya Nath moves this Court in revision against this order. The application raises interesting questions with regard to the practice relating to the execution of a decree for recovery of possession of immovable property obtained by a landlord against a tenant and the scope of rules 35, 36 and 97 to 103 of Order 21 of the Civil Procedure Code.
3. Where the landlord decree-holder seeks to execute his decree for delivery of immovable property, he has to make up his mind whether he should ask for actual possession under rule 35(1) or symbolical possession under rule 36 of Order 21 of the Civil Procedure Code. If he is prepared to say that the person in actual occupation is bound by the decree and has no right to remain in occupation of the property, he may proceed under rule 35(1) and obtain a warrant of possession in Form No. 11 of Appendix E with a general direction to the bailiff to remove any person bound by the decree who refuses to vacate. If he is not prepared to say this, he has no business to ask for the assistance of the Court under rule 35(1). If the property is in the occupancy of some person who is entitled to occupy the same and is not bound by the decree to relinquish the occupancy, the decree holder must proceed under rule 36 and be content with an order of symbolical delivery of possession.
4. Under a warrant of possession issued under rule 35(1) in Form No. 11 of Appendix E, only a person bound by the decree may be removed from the property.
5. A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree under rule 35(1). (See Sailendra Nath Bhattacharjaya v. Bijan Lal Chakravarty, (1) [I.L.R (1947) 1 Cal. 270 : 49 C.W.N 133]. On the other hand, a sub-tenant, who claims a statutory right to occupy the property independently of the tenant under the Rent Control laws, e.g under section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 or section 11(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, is not a representative of a judgment-debtor and is not bound by the decree for ejectment and he may not, therefore, be removed in execution of a decree against the tenant. He is, therefore, entitled to resist execution of the warrant and if he is dispossessed he may apply under rule 100 of Order 21 for restoration of possession [See S.N Talapatra… v. M/S Bengal Bonded Warehouse & Anr.…Opposite Parties. (2) 57 C.W.N 455]. But he has no right to apply under rule 97 of Order 21 for declaration of his right. [See Sukhan Singh v. Baijnath Goenka (3) 12 C.W.N 115]. Section 11(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 or section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, gives him no right to intervene in the proceedings between the landlord and the tenant, (See Thakurdas Pushparaj v. Dwaraka Prosad (4) 87 C.L.J 181 and Bhupesh Chandra Dutta v. Dr. M.N Bose (5) 56 C.W.N 832). He has no right to apply under section 47 of the Civil Procedure Code for an adjudication of his rights and for a quia timet order restraining his removal and his remedy is to institute a separate suit for adjudication of his rights. See Nityananda Kapuria v. Parbati Nath Dutta (6) (58 C.W.N 407) and Khetramohan Manimohan Saha v. Parbati Nath Dutta (7) (59 C.W.N 289). At the same time this Court has also held that Order 21 provides a complete procedure for the protection of his rights and that ordinarily he should adopt that procedure and not the procedure of a separate suit for such protection and for injunction. Narendra Krishna Bose v. Great Eastern Hotel Ltd. (8) (86 C.L.J 72). See also Rajani Kanta Das v. Dayal Chandra Das (9) (54 C.W.N 376, 378).
6. If the execution of the warrant of possession is resisted and the decree holder is prepared to say that the resistance is by the judgment-debtor or by some persons bound by the decree or at their instigation, be may apply under rule 97 complaining of the resistance.
7. A proceeding under rule 97 is an original miscellaneous proceeding in execution, Vide Alagasundaram Pillai v. Pichuvier, (10) (I.L.R 52 Mad. 899 F.B : A.I.R 1929 Mad. 757). The lis is commenced by a petition of complaint. The petitioner is the decree-holder. The cause of complaint is resistance or obstruction to the execution of the warrant of possession by the bailiff. (See Form No. 40, Appendix 9 of the Code of Civil Procedure; Vide Kiranshashi Dassi v. The Official Assignee of Calcutta (11) (I.L.R 60 Cal. 8). Only the decree-holder may apply under rule 97 and he may do so within 30 days of the obstruction complained of. (See Article 167 of the Indian Limitation Act). A new obstruction to a new warrant of possession gives rise to a fresh cause of complaint. [See Surama Sundari Debi…Claimant v. Kiranshashi Chowdhurani, Berhampur…Auction-Purchaser Opposite Party. (12) (A.I.R 1938 Cal. 352)].
8. The parties to the proceeding are the decree-holder and the opposite party against whom the application is made. The final order is conclusive and binds all parties to the proceeding subject to any suit which may be instituted under rule 103 within one year from the date of the order. (See Article 11-A of the Indian limitation Act.)
9. The opposite party is entitled to be summoned and to show cause in Form No. 40 of Appendix E of the Civil Procedure Code. A separate petition by the opposite party may and should be treated as an objection in the proceeding (Vide (5) 56 C.W.N 832 referred to above).
10. A stranger has no right to intervene and to be added as a party. Section 141 of the Civil Procedure Code does not apply as the proceeding is a proceeding in execution. Order 1, rule 10 of the Code is not attracted.
11. On a petition under Order 21, rule 97, the decree-holder may obtain an order that he be put in possession of the property. If he is still resisted by the party he may obtain a further order for the detention of such party in civil prison under rule 98 read with Form No. 41 of Appendix E. These orders do not bind persons who are not parties to the proceedings.
12. If the decree cannot be effectively executed without police help the decree-holder may apply to the Court for the grant of such help. An application for police help is essentially different from an application under order 21 rule 97 though the two applications are often joined in one petition. This Court has framed special rules for dealing with applications for police help (See Manual of the Court of Small Causes, Calcutta, Volume II, Part 4, Chapter IV, page 54, rules 137 and 137A to 137D; Civil Rules and Orders, Volume I, page 80, rule 261; Original Side Rules, Chapter 17, rules 14A to 14D.
13. An order for police help vitally affects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are likely to be evicted brevi manu from the property summarily. Relief by way of restoration of possession obtained by an application under Order 21. rule 100 is poor consolation for a person who is unlawfully dispossessed. The Court should, therefore, proceed with great caution in granting police help. The Court should not hesitate to give such aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid.
14. But where there is a bona fide claim by an occupant that he is not bound by the decree and as such is entitled to resist eviction in execution of the decree the Court may and should decline to give such aid until his claim is negatived in appropriate proceedings. See Debendra Nath Sarkar v. Parul Bala Ghose (13) (88 C.L.J 105, 106, 107) and Sew Sankar Lal v. Bejoy Krishna Dutta (14) (57 C.W.N 65, 66). The claimant is vitally affected by an order for police help and is entitled to be heard on an application praying for such help. The Court has unfettered discretion and ample power to do justice. The Court may examine any person it thinks fit and hear him. If necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. The decree-holder is under a duty to disclose full facts. An order for police help obtained improperly or by suppression of material facts is liable to be set aside. See Jagat Lakshmi Dasi v. Golam Hossain (15) (60 C.W.N 147); Seto Sankar Lal v. Bejoy Krishna Dutta (14) (57 C.W.N 65).
15. The English practice with regard to an action for recovery of possession and the issue of a writ of possession is materially different but it may usefully be noted and compared. A person not a party to such an action may apply to be added as a party (See R.S.C Order 12 rule 25) The plaintiff is entitled to judgment in default of appearance (See R.S.C Order 13, rule 8). The Court has unfettered power to set aside the judgment. (See R.S.C Order 13, rule 10, Order 27, rule 15. The decree for recovery of possession is enforced by leave of the Court by a writ of possession after clue notice to all persons who are likely to be affected. (See R.S.C Order 47). The writ is in Form 8, Appendix H to the rules of the Supreme Court and it commands the bailiff to enter on the land and cause the plaintiff to have possession. On the application of a person in possession of a property who was not made a party to the action for its recovery and who being unaware of the action could not apply to be made a party earlier, the judgment in the action and all subsequent proceedings including the writ of possession may be set aside so far as it concerns him on his electing to be added as a defendant to the action. (Vide Minet v. Johnson (16) [(1893) 63 Law Times, N.S 507].
16. The facts of this case are simple enough. In the plaint and the petition dated the 13th January, 1956, the decree-holder admitted that the petitioner was a sub-tenant and that no effective decree for ejectment could be passed in his absence.
17. In his written statement, the petitioner asserted that he was a sub-tenant. On the face of the record, there is the bona fide contention that the petitioner is a subtenant and that he is not bound by the decree for ejectment. If in fact the petitioner is not a sub-tenant, the decree-holder was ill-advised to ask for an warrant of possession in Form No. 11 of Appendix E. The decree-holder acted illegally in not disclosing these facts in his petition praying for police help and for an order under Order 21, rule 98. The court acted illegally in passing an order for police help without considering the facts appearing on the face of the record and in refusing to hear the petitioner on the question whether police help should or should not be granted. The order for police help is clearly illegal and must be set aside at the instance of the petitioner who is vitally affected by the order. The remaining part of the order passed under order 21, rule 97 against the opposite parties to the decree-holder's petition, namely, Dinesh, Sukhendu and Sovarani cannot be set aside. Those opposite parties did not appear before the learned Judge. They have also not moved this Court in revision against the order. The order against them will, however, in no way, bind the petitioner.
18. I pass the following order:
The order dated the 24th April, 1956 so far as it allows the prayer for police help is set aside. It is declared that the rest of the order dated the 24th April, 1956 does not bind the petitioner in any way. The petitioner is entitled to the costs of this Rule from the opposite party No. 1, Amulya Chandra Sarkar.
19. The Rule is disposed of accordingly.
A.K.D.G