1. The petitioner United Bank of India Ltd. is a banking company having its registered office at Calcutta. It has its branch office at Tinsukia. The opposite party No. 1 J.C Mitra was a tenant under the petitioner bank in respect of the premises owned by it at Tinsukia under a lease executed and registered on the 22nd July, 1953. In the lease the period fixed was one year and the lessee had no right to sublet the demised premises. The bank brought a suit in the year 1957 against the opposite party No. 1 for ejectment and khas possession and for recovery of arrears of rent. The suit was dismissed by the Subordinate Judge. An appeal was filed to this court which was numbered as F.A 37/58.

2. The appeal was disposed of on a compromise which was recorded on the 8th March, 1960. Under the compromise the appeal was allowed. Plaintiffs suit for ejectment of the defendant was decreed and the plaintiff was to get khas possession of the suit premises. The plaintiff, however, undertook not to execute the decree for a period of six months from the date of the decree. In paragraph 2(b) of the compromise it was provided that:

“If the plaintiff decree-holder constructs any building on the vacant plot of land it will give first preference of tenancy of the ground floor rooms to the following persons on market rate of rent less 10%, who are actually in possession of the suit premises.”

3. According to the petitioner the opposite parties Nos. 2 to 8 in this petition were sub-tenants of opposite party No. 1 J.C Mitra. The persons mentioned in paragraph 2(b) of the compromise, to whom in the event of making construction the plaintiff had to let out the premises and who were already in occupation, are those who have been impleaded as opposite parties Nos. 2 to 8 to this petition. After the expiry of the period of six months the decree was put into execution. The Subordinate Judge issued a writ for possession. The Nazir to whom the writ was issued to give possession, reported that the delivery of possession was obstructed by the opposite parties Nos. 2 to 8. On 24th April, 1961 the Subordinate Judge passed the following order:

“Writ of delivery of possession received with the Nazir's report stating that the lands described in the Writ are in occupation of (1) Motor and Radio Co. (2) Chakravarty and Sons (3) Daluram Agarwalla (4) Assam Cloth House (5) Photo House (6) Rambilash Rameswar and (7) Sudhir Roy and there is no house of J.D and so the Writ could not be executed.”

4. Subsequently the decree-holder applied to the court for the issue of writ of delivery of possession by removing the judgment-debtor, his dependants and moveables therefrom by breaking down and opening the lock and allowing him to Sake police help if necessary. Prayer was also made to issue notices to opposite parties Nos. 2 to 8 to show cause why they should not be evicted therefrom under Order 21, Rule 97 of the CPC. Page: 151Thereafter the court below issued notice under Order 21 Rule 35, modifying its previous order where notice was issued to opposite parties Nos. 2 to S. under O. 21 R. 97 of the CPC. When the Nazir went to execute the decree he was obstructed by the opposite parties Nos. 2 to 8 and thereafter the bank applied for reissue of the writ of possession. On the 9th September, 1961 the Subordinate Judge held that the persons who obstructed, namely the opposite parties Nos. 2 to 8, were not bound by the decree and thus no delivery of possession can be granted against them under O. 21 Rule 35 of the CPC. The bank was asked to seek its remedy under Order 21 Rule 97 of the CPC. It is this order which has been challenged by means of the present petition. It is contended by Mr. Choudhury for the petitioner that in the eye of law the sub-tenants are also bound by the decree against the tenant and as legally they are so bound, delivery of possession could be given as against them under Order 21, R. 35 of the CPC and the court was not right in directing the decree-holder to apply under Order 21, Rule 97. His contention is that if any dispute was raised that the opposite parties Nos. 2 to 8 were sub-tenants of the original tenant or not, the execution court should have investigated that matter. Order 21 Rule 35 gives a right to the decree-holder to get possession against all those persons who are bound by the decree and before it can be decided whether the opposite parties Nos. 2 to S. were bound by the decree or not, it had to be decided whether they were sub-tenants or not. In proceedings under Order 21 Rule 35 thus the execution court was competent to decide whether the opposite parties Nos. 2 to 8 were sub-tenants of the judgment-debtor or not.

5. It is urged that the court below was wrong in holding that whether a party was bound by the decree or not is to be determined only on the fact whether he was a party to the suit or not. Reliance was placed on the case of Sheikh Yusuf v. Jyotish Chandra reported in AIR 1932 Cal 241. In this case it was an admitted fact that the opposite party was a sub-tenant. The only contention raised was that a person who is a party to the decree can only be said to be bound by the decree. This contention was repelled. It was held that a valid notice to quit not only determines the right of the original demise but any lease which the tenant might have made. It necessarily follows that legally a subtenant is as much bound by the decree as the tenant himself and thus a sub-tenant was liable to be evicted in execution of the decree under Order 21 Rule 35 of the CPC and it was not incumbent on the decree-holder to proceed under Order 21 Rule 97.

6. This case as I have said, was based on the fact that the relationship between the tenant and the subtenant was admitted. In the present case it was not admitted that the opposite parties Nos. 2 of 8 were sub-tenants of opposite party No. 1. They obstructed the delivery of possession on their own right and not on a right derived from the tenant. The execution court thus was not competent to investigate into the question as to whether the opposite parties Nos. 2 to 8 were in fact sub-tenants of the opposite party No. 1. Moreover this case does not lay down that the decree-holder cannot proceed under Order 21, Rule 97 against persons who dispute the fact that they were sub-tenants.

7. The next case relied upon is Sailendra Nath v. Bijan Lal reported in AIR 1945 Cal 283. This matter arose out of a suit. The broad proposition enunciated in the case that a sub-lessee is bound by the decree against a lessee cannot be doubted. But this case is not an authority for the proposition that if anybody denies that he is a sub-tenant of the lessee, the decree can still be executed against him under Order 21, Rule 35 and the execution court can determine this question.

8. The next case is Asrabuddin v. Abdul Fazal Doctor reported in AIR 1947 Cal 139. This was also an appeal arising out of a suit and it was held in this case that the principle that in the case of leases under the Transfer of Property Act, a decree for ejectment secured against the lessee will bind a sub-tenant of the lessee though not a party to the ejectment suit and that he as much as the lessee can be ejected under O. 21, R. 35 of the CPC, in execution of the decree will not apply to a case under the Bengal Tenancy Act.

9. The next case is Hirendra Bhusan v. Purna Chandra reported in 52 Cal WN 843. In this case a suit had been brought by a sub-tenant for a declaration that the order against the tenant is not binding on him and for an injunction restraining the landlord from interfering with his possession by executing the decree. It was held that such a suit is barred by section 47 of the CPC and the sub-lessee will be deemed to be a party to the suit and the decree is executable against him as he is bound by the decree and his remedy was one under section 47 of the CPC. The case is thus distinguishable.

10. The next case is Gurushiddaswami Guru v. Dakshina Maharastra Digambar Jain Sabha reported in AIR 1953 SC 514. This was an appeal arising out of a suit. In that case it was held that as the plaintiff had not brought a suit for ejectment on the ground of tenancy but on the ground that the plaintiff had title to the land and the defendant's lease was invalid, the principle that a sub-lessee would be bound by a decree for possession obtained by a lessor against the lessee was not attracted.

11. In my judgment thus, none of these cases lay down that when there is a dispute the execution court under O. 21, R. 35 can determine the fact that the person is a sub-tenant or not and then hold that he is bound or otherwise by the decree. As the opposite parties Nos. 2 to 8 obstructed the delivery of possession on the ground that they had made their own constructions on the land, the proper investigation can be done when the decree-holder proceeds under Order 21 Rule 97 of the CPC.

12. There is another formidable objection to the present petition. After the order of the court below the decree-holder has made an application under O. 21, R. 97 which is still pending and after having complied with the order of the court below Page: 152the present revision becomes infructuous. The petitioner however, contends that as the application under Order 21, Rule 97 had to be filed within thirty days, the petitioner made an application to avoid any objection of limitation and the making of the application under O. 21, R. 97 is no bar to the maintainability of the present petition.

13. Secondly he contends that in an investigation under O. 21, R. 97 the order of the execution court holding that the opposite parties 2 to 7 are not bound by the decree will be final and thus the petitioner will not be able to prove that the resistance by opposite parties Nos. 2 to 8 was unlawful. In my opinion there is no substance in either of these two contentions. The petitioner having filed an application under O. 21, R. 97 cannot now ask this court to send back the case to the execution court for investigation as to whether the opposite parties Nos. 2 to 8 are sub-tenants of opposite party No. 1 when the same enquiry could be done in proceedings under Order 21, Rule 97 and the present revision has thus become in fructuous. Order 21 Rule 97 of the CPC provides that:

“(1) Where the holder of a decree, for the possession of immoveable property or the purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.”

14. When the decree-holder complains that he has been obstructed in obtaining possession after notice to the persons who were alleged to have obstructed, the court can investigate into the matter and thus the court could in this case decide in the proceedings under Order 21 Rule 97 of the CPC whether the obstruction was justified or not. In the result therefore there is no force in this petition and it is rejected with costs which I assess at Rs. 50/-.

IF/M/K.S.B

15. Petition dismissed.