The Judgment of the Court was delivered by

Mohammad Rafiq, J.:— The appellant decree-holder Navneet Kumar has filed this appeal against the judgment dated 29.3.2006 passed by learned Single Judge in the writ petition filed by the respondent (objector) No. 1 Mahesh Chandra Gupta. The aforesaid Mahesh Chand Gupta challenged the order dated 4.8.2003 passed by the Executing Court, namely Additional District Judge, (Senior Division) No. 3, Jaipur City, Jaipur in Execution Application filed by the appellant herein. By that order, the learned Executing Court rejected the application filed by the respondent No. 1 filed under Order 21 Rule 97. That application was filed by the respondent No. 1 in the proceedings initiated at the instance of the appellant seeking execution of the judgment and decree dated 29.1.2005 passed by the trial court decreeing the suit for eviction as well as recovery of arrears of rent of Rs. 36,000/- and with a further direction to pay a sum of Rs. 1,000/- per month as mense profit till recovery of the possession. The decree was passed against respondent No. 3 Murari Lal who was a defendant in the suit. The respondent No. 1 filed his objections in the execution proceedings inter alia asserting therein that the respondent No. 3 Murari lal was in possession of the disputed property for a long time and that he had taken the same on rent from Murari Lal for payment of Rs. 1,500/- per month with effect from 1.9.1999 and was residing therein as his tenant since then. It was contended that the plaintiff (appellant herein) filed the civil suit without impleading him as party thereto and had obtained ex-parte decree behind his back. He learnt about the same only when the Court Nazir came to the said premises and required his wife to vacate the same. It was contended that the plaintiff was fully aware of the fact that he was in possession of the suit premises and yet he did not implead him (objector) as a party to the suit. In fact, the disputed property was owned by Smt. Shanti Devi who bequeathed the same by execution of will to Murari Lal on 9.6.1999 Murari Lal was therefore in possession of the said property as owner and had let out the same to the objector during lifetime of Smt. Shanti Devi. It was contended that eviction of objector without providing him opportunity of hearing would affect his legal rights and that the defendant Murari Lal was in possession of the disputed property as owner and not as a tenant.

2. The respondent No. 1 thereafter filed another application on 15.7.03 with the prayer that in view of his objection raised in the application under Order 21 Rule 97 C.P.C, he should be permitted to lead evidence in support of his application. The learned Executing Court however rejected the said application by its order dated 4.8.2003, which was impugned in the writ petition and the learned Single Judge vide judgment dated 29.3.2006 allowed the writ petition and directed that in view of provisions of Order 21 Rule 103 C.P.C, the Executing Court shall afford opportunity to the parties to lead evidence and decide the application under Order 21 Rule 97 CPC within a period of six months from the date of submissions of the certified copy of that order. It was further directed that the learned Executing Court shall as a first step determine the amount of rent which the objector was otherwise liable to pay to respondent No. 3 Murari Lal and directed for depositing the rent with effect from the date of filing of application under Order 21 Rule 97 in accordance with the order of such determination.

3. We have heard Shri M.M Ranjan, the learned counsel for the appellant and Shri A.K Bajpai, the learned counsel for respondent No. 1 (objector).

4. Shri M.M Ranjan, the learned counsel for the appellant argued that the order passed by the learned Single Judge permitting the parties to lead evidence on the application filed by the respondent No. 1 under Order 21 Rule 97 was unsustainable in law because respondent No. 1 Mahesh Chand Gupta was claiming himself to be a tenant of Murari Lal and a decree of eviction has already been passed against said Murari Lal, as such he was bound by the decree. Since he was claiming through Murari Lal, he was equally bound by the decree passed against him. The disputed property was owned and possessed by Smt. Shanti Devi who was a child-widow and Murari Lal was her tenant. Smt. Shanti Devi had executed a registered will in favour of the appellant on 26.12.1998 She expired on 17.9.1999 The appellant thereafter filed a suit for eviction as well as arrears of rent against Murari Lal which was decreed by the learned trial Court vide its judgment dated 29.1.2003 The said Murari Lal filed a suit for injunction against Smt. Shanti Devi claiming that she was his wife. This suit was also dismissed by the Court concerned by judgment and decree dated 11.1.1996 Shri M.M Ranjan therefore argued that Murari Lal being tenant of Smt. Shanti Devi, the decree of ejectment against him having attained finality, the respondent No. 1, who claims to be his tenant, can at the most be treated as his sub-tenant and has no independent right of his own to raise any objection about the execution of decree. He being the sub-tenant of Murari Lal, is legally bound by the judgment and decree passed against Murari Lal who was main tenant. Shri M.M Ranjan, the learned counsel for the appellant cited the judgment of Hon'ble Supreme Court in Suresh Chand Jain v. IIIrd Addl. District Judge, Mathura, (2001) 10 SCC 508 and argued that the learned Executing Court rejected the application of the respondent No. 1 by relying on the said judgment, the learned Single Judge even then did not notice the said judgment while reversing the order of the Executing Court. Shri M.M Ranjan also relied on the judgment of Hon'ble Supreme Court in Rupchand Gupta v. Raghuvanshi (Private) Ltd. - AIR 1964 SC 1889 and Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723 : AIR 1998 SC 1754 and Balavant N. Viswamitra v. Yadav Sadashiv Mule (deceased by L.Rs) - (2004) 8 SCC 706 : AIR 2004 SC 4377. He therefore argued that execution of a decree validly passed cannot be allowed to be frustrated by entertaining frivolous and unfounded objections. There was therefore no justification for permitting the respondent No. 1 to lead evidence which would eventually delay execution of the decree.

5. On the other hand, Shri A.K Bajpai, the learned counsel for the respondent No. 1 argued that impugned orders passed by the Executing Court and learned Single Judge are based on correct appreciation of the facts and the law. He argued that the order passed on application under Order 21 Rule 97 would be in terms of Rule 103 of Order 21 of CPC and according to Rule 101 of Order 21, all questions relating to right, title and interest are required to be adjudicated in proceedings under Order 21 Rule 97 CPC itself and not by means of a separate suit. He further argued that the legislature has provided for such a mechanism in order to avoid multiplicity of litigation. It was argued that the petitioner being in actual physical possession of the disputed property, was entitled to be heard before any order adverse to his interest was passed. Learned counsel further argued that it is trite law that even a sub-tenant of a tenant cannot be dispossessed from the tenanted premises without the due process of law. Shri A.K Baipai argued that since ex-parte decree was passed in the matter, therefore, true and correct facts were not brought to the notice of the Court. Shri A.K Bajpai in order to butters his argument relied on the judgments of the Supreme Court in Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. - (1996) 4 SCC 144 : AIR 1996 SC 2102 and Babulal v. Raj Kumar - (1996) 3 SCC 154 : AIR 1996 SC 2050. He therefore prayed that the appeal be dismissed.

6. We have given our thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record.

7. In order to appreciate the questions raised, the nature of objections have to be conjointly read with the application seeking permission to lead evidence. The substance of the objection which the respondent No. 1 sought to raise was that even though the plaintiff/decree-holder was aware of the fact that the respondent No. 1 was in possession of the disputed premises, he (i) did not implead him (objector) as party defendant, (ii) he (objector) could not be evicted from the tenanted premises without the opportunity of hearing and (iii) that the judgment-debtor Murari Lal was the owner of the disputed property and not its tenant, which in other words would mean that the objector was not sub-tenant of Murari Lal but was his tenant. Objections raised by the respondent No. 3, therefore, make it clear that he is seeking to lead evidence to prove that Murari Lal was not the tenant of Smt. Shanti Devi and therefore, could not be treated as tenant of plaintiff Navneet Kumar. He therefore wishes to establish by lead of evidence that Murari Lal was the owner of the disputed property and therefore the objector has to be accepted as his tenant. On that premises, an argument is sought to be made by him that a tenant cannot be ejected from the tenanted premises except by due process of law. It would thus be clear that even if all what is sought to be proved by lead of evidence is accepted as correct, the result that it will return would be no different than the one which is already available even without the evidence being led and which is that the respondent No. 1 (objector) claims to be the tenant of Murari Lal. Now the trial court by the impugned judgment and decree has held that Murari Lal was tenant of the plaintiff/decree holder Navneet Kumar and has directed his eviction as also for recovery of arrears of rent from him.

8. The Hon'ble Supreme Court in Suresh Chand Jain, supra, in which also the suit was decreed ex-parte against a tenant and sub-tenant sought to raise somewhat similar objections in execution proceedings, held in para 6 as under:—

“We have heard learned counsel for the respondents and we find the argument raised is well substantiated. From the facts narrated above, it is clear that so far as the tenant Sardar Pritam Singh was concerned, the decree for ejectment against him attained finality. The sub-tenant did not have any independent right or (sic) to raise any objection before the executing court. The sub-tenants were legally bound by the orders passed against the main tenant particularly when the ejectment decree against the main tenant because final and his objection before the executing decree against the main tenant became final and his objection before the executing court was rejected by the Additional District Judge and upheld by the High Court. Further, we find that the sub-tenants in their objection have not pleaded any right independent to the rights of the main tenant. They merely reiterated the objections of the main tenant, namely, that the ejectment decree passed by the small cause court is a nullity and that they were not parties to the eviction suit. Under such circumstances the High Court was not right in allowing the writ petition filed by the sub-tenants. We, accordingly set aside the order and judgment of the High Court dated 17.4.1997 and restore that of the Additional District Judge, Mathura dated 17.2.1986 (sic). The appeal is allowed but there will be no order as to costs.”

9. In the present case too, all that the judgment-debtor Murari Lal wanted to establish is that he was owner of the disputed property and not tenant and in fact he went to the extent of filing injunction suit against original owner Smt. Shanti Devi which was dismissed and what is being now canvassed by the respondent No. 1 (objector herein) is exactly that he (the defendant judgment-debtor) was not the tenant of Smt. Shanti Devi but was owner of the disputed property. Obviously, to permit the respondent No. 1 to lead evidence would result in again recognizing the legitimacy of an otherwise unsubstantiated claim. Their Lordships of the Hon'ble Supreme Court in Rupchand, supra had the occasion to consider a similar matter in which also the landlord brought a suit against his lessee for ejectment without impleading the sub-lessee as defendant. The lessee, like in the present case, did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex-parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. Their Lordships while repelling this argument in para 12 of the report held as under:—

“It is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.”

10. The Hon'ble Supreme Court again reiterated this view in Rupchand, supra in the case of Balavant N. Viswamitra, supra, in which also the sub-tenant in execution of a decree passed in suit for possession raised somewhat similar objection that though a necessary party, he was not joined as defendant in the suit and therefore the decree passed in the suit would be nullity and not executable against him. Their Lordships while rejecting the argument, in para 28 of the judgment held as under:—

“In our considered opinion, the present respondents could not be said to be “necessary party” to the suit. Non-joinder of respondents, hence, would not make a decree passed by the Court of small Causes, Bombay nullity or inexecutable. The High Court erroneously proceeded against the well settled principle of law by observing in the impugned judgment that since the respondents (petitioners before the High Court) were claiming through Papamiya and as they were not joined as ‘party’ in the suit, the orders passed by the Court “would in no way affect or bind them.” The above observations, in our opinion, did not lay down the law correctly.”

11. In fact, the Hon'ble Supreme Court in Silverline Forum Pvt. Ltd., supra, while dealing with the similar objection at the instance of sub-tenant in the scope of Order 21 Rule 97 held that the sub-tenant was bound by the decree of ejectment passed against the tenant and that “a lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms” and further that even if a consent was given by the landlord to his tenant for creation of the sub-tenancy, that is valid only as between the landlord and his tenant and such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord.

12. We have respectfully studied the judgments of the Supreme Court relied on by the learned counsel for the respondent in Samir Sobhan Sanyal and Babulal, supra, which in our opinion are distinguishable on facts and do not help the respondent No. 1.objector in any manner. Samit Sobhan Sanyal was a case where the question involved was eviction of a tenant and not that of subtenant and Babulal was a case in which the decree for specific performance for sale of a property was being objected to by a party who was in actual possession of the property. Neither of these judgments would therefore apply to the facts of the present case.

13. In our considered view, therefore, the learned Single Judge was not correct in reversing the order passed by the Executing Court.

14. In view of what has been discussed above, the appeal deserves to be allowed and is hereby allowed. The judgment of the learned Single Judge dated 29.3.2006 is set aside and the order passed by the learned Executing Court dated 4.8.2003 is restored. There shall be however no order as to costs.