1. This Rule was issued at the instance of a person who claims to be a sub-tenant entitled to resist the landlord decree-holder's execution of the decree for ejectment obtained against the tenant. The application was thrown out by the learned Judge in the Court below on two grounds, namely, (i) that the petitioner was absent and (ii) that she had no locus standi to make the application.
2. So far as the question of the petitioner's locus standi in regard to her application under Order XXI, rule 97 of the Code of Civil Procedure is concerned, the learned Judge seems to be right and on that ground his order rejecting the petitioner's application may be supported.
3. It must be remembered, however, that the petitioner claims to be a sub-tenant under the original tenant Ram Chandra Das, who was the judgment-debtor in the decree-holder's decree for ejectment. That decree having been put into execution, the petitioner resisted the said execution upon the plea that she was a sub-tenant as stated above and had become a direct tenant under the decree-holder under the Rent Control law on the passing of the ejectment decree against the tenant and so she was not evictable in execution of the decree. In the peon's report her name appeared as one of the resisters and on account, inter alia, of this resistance, the decree-holder applied for fresh execution with police help. This application of the decree-holder could not have been allowed under the law without issuing notice upon the petitioner and without giving her an opportunity to show that she was entitled to remain on the pre-mises by virtue of a right independent of the tenant. This she tried to do by filing the above application. That application, as I have already said, was not maintainable under the law. At the same time, however, as stated above she was entitled to a notice and to a hearing and she having already appeared, the learned Judge could and should have heard her after giving her proper opportunities to place all relevant materials in support of her case of resistance and, if he found that she was posesssing on behalf of the judgment-debtor, the order would undoubtedly be against her and the decree-holder would get an order for police help as against her. If, however, the learned Judge would find that the petitioner was in occupation not on behalf of the judgment-debtor but on her own account under the relevant provisions of Order XXI, rules 97-100 (Vide in particular Rule 98) of the Code of Civil Procedure, the order would be against the decree-holder and would bind him unless it was set aside by a regular suit as contemplated by Order XXI, rule 103 of the Code. In these circumstances, inspite of the fact that the petitioner had no locus standi to make any independent application under Order XXI, rule 97 of the Code of Civil Procedure, the order of the learned Judge cannot be supported, as in my view the other ground also, namely, that the petitioner was absent at the hearing, would not be sufficient in the present case for supporting that order, there being on the record, a reasonable explanation for that absence.
4. I would, accordingly, set aside the order of the learned Judge and direct him to give opportunities to the petitioner to establish her claim to resist the decree-holder's execution and to decide the matter in accordance with law under the provisions of Order XXI, rules 97 to 100 of the Code of Civil Procedure.
5. I may just indicate here that a point was raised before me by Mr. Roy, appearing on behalf of the decree-holder opposite party, that the learned Small Causes Court Judge would not be entitled to consider the question under Order XXI, rules 97 to 100 of the Code of Civil Procedure as that would be giving him jurisdiction to affect rights in immovable property but, if that view is accepted, the decree-holder's own application for police help ought to fail. I do not, however, think that when the ejectment decree is sought to be executed before the learned Judge, he has no power to start a proceeding under Order XXI, rule 97 of the Code, or to decide objections under the said provision, read with three subsequent rules.
6. I, accordingly, make the Rule absolute, set aside the order complained of and direct the learned Judge to proceed in accordance with law in the light of the observations I have made above.
7. As to costs, it seems to me that, in the circumstances of this case, the petitioner should pay a consolidated sum of Rs. 34 to the decree-holder opposite party as condition precedent to the fresh hearing which I have ordered above. These costs must be paid within fifteen days of the arrival of the records in the lower court and, in case of any default, this Rule will stand discharged with costs, hearing fee being assessed at one gold mohur.
S.K.B
Comments