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P. Parthasarathy Chetty v. S. Chitra Pillai Another
Factual and Procedural Background
The dispute arises from an eviction order obtained by the owner (the appellant in the present Second Appeal) against his tenant in H.R.C. No. 3036 of 1955 under the Madras Buildings (Lease and Rent Control) Act, 1949. On 17 January 1956 the owner secured an order for eviction and, under section 9 of the 1949 Act, applied in execution (E.P. No. 592 of 1956) to the City Civil Court, Madras, for a warrant for delivery of possession. The present first respondent (referred to in the opinion as the obstructor or sub-tenant) obstructed delivery, prompting E.A. No. 382 of 1956 for removal of obstruction. On 16 July 1956 an order was made directing removal of the obstruction and granting the obstructor time to vacate by 31 July 1956.
The obstructor then instituted O.S. No. 1236 of 1956, alleging he was a direct tenant (not a sub-tenant), claiming protection under the City Tenants Protection Act and asserting collusion in obtaining the eviction order. On 30 January 1957 the trial Court dismissed that suit, finding the obstructor to be a sub-tenant and that the eviction order was not collusive. The obstructor appealed (A.S. No. 70 of 1957) and the appellate Court reversed, finding he was not a sub-tenant and that the eviction proceedings were collusive. The owner obtained a Second Appeal to this Court; this Court set aside the appellate judgment and remanded. On remand the appellate Court agreed with the trial Court and confirmed dismissal. The sub-tenant then pursued a Second Appeal to this Court (S.A. No. 1323 of 1961), where the Court upheld the trial Court findings that the obstructor was a sub-tenant and refused to interfere. A contention based on the repeal of the 1949 Act and the enactment of the Madras Buildings (Lease and Rent Control) Act, 1960 — that post-repeal the sub-tenant would not be bound unless made a party — was not permitted in that Second Appeal. That Second Appeal was dismissed with costs on 9 April 1964.
On 14 April 1964 the obstructor instituted the present suit (the suit out of which this Second Appeal arises), impleading the owner as 1st defendant and the former immediate tenant as 2nd defendant. The plaint relied on the dismissal of the Second Appeal (9 April 1964) as creating a fresh cause of action and sought a declaration that the eviction order of 17 January 1956 (H.R.C. No. 3036 of 1955) was inexecutable against him by reason of findings read with sections 26 and 35 of the 1960 Act, and sought an injunction restraining eviction proceedings.
The City Civil Judge (trial Court) dismissed the suit, holding that (inter alia) non-impleading of a sub-tenant did not exculpate him from the effect of a valid eviction order against the principal tenant, that the petition for removal of obstruction had been allowed on 31 July 1956, that the subsequent suit to challenge that order had been dismissed and the dismissal confirmed on Second Appeal, and that the present suit — filed beyond one year from the order and not directly addressing the removal of obstruction order — was barred under Order 21, rule 103, Civil Procedure Code. The lower appellate Court (Additional Judge, City Civil Court) allowed the appeal, overruled limitation, found the obstructor to be a sub-tenant, and granted the declaration and injunction based on sections 26 and 35 of the 1960 Act. The owner then brought the present Second Appeal to this Court.
Legal Issues Presented
- Whether, by reason of the repeal of the Madras Buildings (Lease and Rent Control) Act, 1949 and the coming into force of the Madras Buildings (Lease and Rent Control) Act, 1960 (the New Act), an eviction order obtained under the old Act ceases to be binding or executable against a sub-tenant who was not impleaded in the eviction proceedings under the new Act's provisions (in particular sections 26 and 35)?
- Whether the plaintiff's (obstructor's) suit, which effectively seeks to resist execution of a prior eviction order by relying on a new statutory regime, is barred by limitation and by principles of finality/res judicata where prior summary and appellate proceedings had reached finality?
- How should the provisions of the Code of Civil Procedure (notably Order 21 rules 35, 97 and 103 and section 47 CPC) be applied to execution of rent-control eviction orders and to objections by sub-tenants in execution proceedings?
Arguments of the Parties
Obstructor / Plaintiff (first respondent)
- Initially contended he was a direct tenant (or otherwise had rights protected by the City Tenants Protection Act) and that the eviction order had been obtained collusively.
- After various proceedings, advanced the argument that upon repeal of the 1949 Act and enactment of the 1960 Act, the sub-tenant acquired new rights under section 26 of the 1960 Act (and section 35 savings) so that an eviction order obtained under the old Act would not be binding on him unless he had been made a party to the eviction application.
- Relied upon section 26 of the New Act (read with section 35) to claim that the earlier eviction order was inexecutable against him because he had not been impleaded before the Rent Controller.
Owner / Appellant (first defendant in the suit)
- Maintained that the eviction order obtained under the 1949 Act and executed under section 9 of that Act was valid and executable against the obstructor/sub-tenant; the execution proceedings in the Civil Court were to be treated as if the eviction order were a decree of that Court.
- Contended that the non-impleading of the sub-tenant did not exculpate him from the effect of the valid eviction decree against the principal tenant, and that procedural finality (including limitation and res judicata) prevented reopening the matter by the present suit.
- Argued that the New Act (section 26) did not operate retrospectively to nullify an already enforceable order and that section 35 (the savings clause) must be read so as not to render prior enforceable orders useless.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mellor v. Watkins | Rule: under-lease loses upon forfeiture of head lease; but a surrender by the lessee does not prejudice an under-lessee's estate. | Quoted to illustrate that sub-tenancy rights may in some circumstances survive actions relating to the head lease; used to explain nuances when sub-tenants may have independent rights. |
| Yusuf v. Jyotishchandra Banerji | Principle that when landlord obtains decree in ejectment against tenant, the tenant's sub-tenants, licensees or servants in actual possession are "persons bound by the decree" within Order 21, rule 35 CPC. | Relied upon to support the proposition that a decree in ejectment against a tenant can be binding on sub-tenants under Order 21, rule 35, and that sub-tenants can be dispossessed in execution unless they show independent rights. |
| Jafferji Ibrahim Ji v. Miyadin Mangal | Observation that possession obstructors have no better right under the rent act than they had apart from it; joining all persons in possession may be advantageous but the rent act does not confer stronger obstruction rights. | Applied to show the present obstructor is not in a better position under the New Act than obstructors in that case; supports the view that a sub-tenant does not obtain superior rights merely from non-impleading. |
| Ramachandra Chetty v. Mothaliyandan Chettiar | Considered whether an order under the old Rent Act, once enforceable, becomes unenforceable by reason of section 35 of the 1960 Act; held that section 35 was not intended to make prior enforceable orders useless and that section 26 must have limited application. | Heavily relied upon by this Court: used to support the interpretation that the New Act's section 26 cannot be read to invalidate orders already enforceable under the old Act and that section 35 limits the application of section 26 where it would necessitate reopening settled matters. |
| Narayanaswami v. Renuka Devi | On execution of an eviction order passed by the Controller: the concerned Civil Court must execute it as if it were a decree for possession passed by that Court. | Used to show that once the Civil Court is seized in execution it must follow the Code's execution provisions and treat the eviction order as a decree for possession, with finality governed by the Code. |
| Natesa v. Dhanapal Bus Service | Authority relied upon by the sub-tenant (specific content not detailed in the opinion). | The Court observed that the observations in that case, relied on by the sub-tenant, have no application to the statutory interpretation issues under consideration in the opinion. |
Court's Reasoning and Analysis
The Court began by stating it could not follow the reasoning of the lower appellate Court (which had overruled limitation and granted declaratory relief on the basis that the New Act required sub-tenants to be impleaded). The Court's analysis proceeded in several linked steps:
- Distinction between tenants and sub-tenants: the Court emphasized that the statutory protections against eviction in the Rent Control legislation are framed in favour of "tenants" and not expressly in favour of sub-tenants. Section 10 of the New Act (corresponding to section 7 of the old Act) prohibits eviction of a tenant save in specified circumstances; no similar protection is granted expressly to sub-tenants.
- Comparison of old and new statutory language: under the 1949 Act section 12(c) expressly declared that orders for eviction of a tenant would be binding on sub-tenants, whether parties or not, unless obtained by fraud or collusion. The 1960 Act's section 26 differs in language, stating an eviction order shall be binding on sub-tenants who were made parties in the application for eviction, with provisos about those who become sub-tenants after the application. The Court held that section 26 does not, by necessary implication, mean that where a sub-tenant was not impleaded the order is not binding on him.
- Role of execution procedure and the Code of Civil Procedure: the Court explained that eviction orders under the Rent Act (old and new) are to be executed in Civil Courts and treated as if they were decrees of those Courts (section 9 of the old Act; corresponding section 18 of the new Act). Once an eviction order is placed in execution before the Civil Court, execution proceeds under the Code. Order 21, rule 35 CPC allows removal of persons bound by a decree; where obstructors claim independent title the provisions (Order 21 rules 97 to 105 and rule 103) govern how the obstruction is addressed and when the obstructor may maintain possession pending trial or be dispossessed.
- Finality, limitation and res judicata: the Court stressed that a sub-tenant claiming an independent right must pursue the remedy under the procedure provided (Order 21 rule 103; if a suit is required it must be within the time and not be a second suit seeking to relitigate matters already finally decided). The substance of the claim — whether the obstructor seeks to resist the same order for possession — matters more than the form; the present suit was, on substance, a second attempt to get over the same order for removal of obstruction and was therefore barred by limitation and res judicata unless some other legal provision superseded it.
- Interpretation of savings clause (section 35): the Court rejected the contention that section 35 of the New Act should be read to convert prior enforceable orders into non-enforceable ones simply because a sub-tenant had not been impleaded. The Court adopted the reasoning (cited from Ramachandra Chetty) that section 35 cannot be given an interpretation that would render enforceable orders under the old Act "absolutely useless" and that section 26 must have limited application read with section 35(2)(a) only where the scheme can be carried out without reopening settled matters.
- Conclusions on execution against sub-tenants: the Court reiterated established principles that a decree for ejectment against a tenant is binding on sub-tenants who have no independent right; a sub-tenant may set up independent rights or plead fraud or collusion, and if such claims are bona fide the obstructor's possession may be maintained pending adjudication. However, the statutory change in the New Act did not automatically nullify previously enforceable eviction orders nor oblige the landlord retroactively to implead all sub-tenants in earlier proceedings.
Holding and Implications
HOLDING: The Second Appeal by the owner is allowed. The decree and judgment of the trial Court dismissing the plaintiff's suit are restored; the judgment and decree in the lower appellate Court are set aside. The plaintiff's prayers for a declaration that the eviction order in H.R.C. No. 3036 of 1955 is unexecutable against him and for an injunction fail.
Direct consequences and orders made by the Court (as stated in the opinion):
- The decree and judgment of the trial Court stand restored.
- The Order as to costs made by the trial Court will stand; the appellant (owner) is entitled to his costs in the Second Appeal; the parties will bear their respective costs in the lower appellate Court.
- The plaintiff (obstructor/sub-tenant) shall have time until 31 October 1966 to vacate and surrender vacant possession.
Implications drawn by the Court in the opinion:
- The Court interpreted sections 26 and 35 of the 1960 Act so as not to render enforceable eviction orders obtained under the 1949 Act nugatory; section 26's provision for impleading sub-tenants is to be read in the context of established execution procedure and the savings clause, and not as an automatic retrospective nullification of past enforceable orders.
- The decision preserves the established procedural framework under the Code of Civil Procedure for execution of decrees for possession and for addressing objections by persons in possession who claim independent title.
This Second Appeal by the first defendant is having its third round in this Court and that too on the intangible claim of a sub-tenant to maintain his possession of a premises in respect of which the owner has obtained an order for eviction against his tenant. The facts and proceedings in which the subtleties of of law and procedure have had their full play may be briefly set out. The appellant is the owner of a premises in the City. The second respondent herein was his tenant, and he initiated against him proceedings for eviction H. R. C. No. 3036 of 1955, under the Madras Buildings (Lease and Rent Control) Act, 1949. On 17th January, 1956, the owner secured the order for eviction and applied, under section 9 of the Madras Buildings (Lease and Rent Control) Act, 1949, to the City Civil Court, Madras, in execution, E.P. No. 592 of 1956, for the issue of a warrant for delivery of possession. The present first respondent obstructed delivery and this led to E.A. No. 382 of 1956 by the owner for removal of obstruction. On 16th July, 1956, an order was passed directing the removal of the obstruction, the Court granting time to the present 1st respondent, who will be hereafter referred to as the obstructor or sub-tenant according to the context to vacate the premises by 31st July, 1956. Thereupon, the obstructor instituted the suit O.S. No. 1236 of 1956 alleging that he was a direct tenant of the owner, that the tenancy was only of the site and not of the building, that he was entitled to the protection and privileges conferred by the City Tenants Protection Act, that the order for eviction had been obtained collusively and that in the circumstances, the order for eviction was not binding on him. Appropriate declaration and injunction were prayed for. On 30th January, 1957, this suit was dismissed, the trial Court finding that the obstructor was only a sub-tenant under the tenant and that the order of eviction was not a collusive order. The Court further found that the City Tenants Protection Act had no application to the premises in question, the lease being of land and superstructure. There was an appeal therefrom by the sub-tenant, A.S. No. 70 of 1957 City Civil Court, Madras, and the appellate Court differed from the Court of first instance and held that the obstructor was not a sub-tenant and that the proceedings for eviction had been instituted collusively. In the result, it has found that the eviction order was not binding on the obstructor. The matter was then brought up to this Court by the owner in Second Appeal, and this Court set aside the judgment of the lower appellate Court and remanded the matter for fresh disposal. On remand, the lower appellate Court agreed with the findings of the trial Court and confirmed the decree of dismissal of the suit. Against that decree, the subtenant came up in Second Appeal to this Court, S.A. No. 1323 of 1961. This Court, in Second Appeal, upheld the findings of the trial Court that the obstructor was not a direct tenant of the owner and that the lease was not of vacant land but of land with superstructure thereon. Observing that the question depended entirely on appreciation of evidence and that the findings of both the Courts below were findings of fact, this Court refused to interfere in Second Appeal. An attempt was made in Second Appeal to contend that by the repeal of the Madras Buildings (Lease and Rent Control) Act of 1949 and by reason of the provisions under the new Act, the Madras Buildings (Lease and Rent Control) Act, 1960, a new situation had arisen, and that the owner could not in the circumstances avail himself of the eviction order obtained under the old Act. It was contended that for the sub-tenant to be bound by an order for eviction under the Madras Buildings (Lease and Rent Control) Act, he must, under the new Act, be made a party to the proceedings. The obstructor was, however, not permitted to raise this new ground. It was pointed out that the plea that was taken by the obstructor, that he was a sub-tenant entitled to certain benefits under the 1960 Act, was in direct contravention of the stand taken by him in the execution proceedings and in the suit which had been taken up to Second Appeal. The Second Appeal was dismissed with costs on the 9th of April, 1964. On the 14th of April, 1964, the suit, out of which the present Second Appeal arises, was instituted by the obstructor as plaintiff, impleading therein the owner as the 1st defendant and the erstwhile immediate tenant as the 2nd defendant. The plaint sets out the original order of eviction, the subsequent proceedings and the dismissal of the Second Appeal. It refers to the fact that the owner was applying for the removal of obstruction and delivery of the order he had secured. The plaint purports to rely on the dismissal of the Second Appeal on 9th April, 1964, as giving a fresh cause of action. It is submitted in the plaint that by reason of the finding of sub-tenancy in the Second Appeal, read with sections 26 and 35 of the Madras Buildings (Lease and Rent Control) Act, 1960, the original order passed in H.R.C. No. 3036 of 1955 became unexecutable against the obstructor, that is, the sub-tenant. There is no specific prayer for a declaration that the order passed by the executing Court directing the removal of obstruction is bad. However, a declaration is prayed for that the order dated 17th January, 1956, in H.R.C. No. 3036 of 1955 was inexecutable against the sub-tenant, the plaintiff in the suit, in view of the findings in Second Appeal No. 1325 of 1961. Injunction was claimed restraining proceedings for eviction.
The learned City Civil Judge, the Court of first instance, rejected the pleas put forward observing that the non-impleading of a sub-tenant would not exculpate him from the effect of the valid eviction order against the principal tenant or confer immunity in a petition for removal of obstruction filed under the Code of Civil Procedure. It was further observed that the petition for removal of obstruction, E.A. No. 382 of 1956, had been allowed on 3lst July, 1956, and the suit O.S. No. 1236 of 1956, which included a prayer for a declaration against that order, had been dismissed finally and the dismissal was confirmed in Second Appeal. The present suit which did not even contain a prayer relating to the order for removal of obstruction and filed beyond one year from the date of the order, cannot efface or ignore the effect of the conclusiveness of the order for removal of obstruction under Order 21, rule 103, Civil Procedure Code. In the result, the suit was dismissed. But the obstructor sub-tenant, has succeeded in the appeal therefrom and it is this that has led to the present Second Appeal. The learned Additional Judge, City Civil Court, Madras, noticing that the obstructor is a sub-tenant under the 2nd defendant against whom an order for eviction had been passed, overruled the plea of limitation on the ground that it is without substance. The following observations of the judgment show the approach:
“The suit is to establish the plaintiff's title as a sub-tenant. It is in that view that he has prayed for the declaration that the eviction order obtained by the 1st defendant against the 2nd defendant is not binding on him. It cannot however be denied that the effect of granting that declaration would amount to upholding the objection which the plaintiff put forward in execution taken out by the 1st defendant against the 2nd. But that cannot be helped, for, the scope of the present suit is entirely different from the scope of the suit which the plaintiff filed to set aside the summary order. The suit to set aside the summary order was based on the title of the plaintiff to present possession as a direct tenant under the 1st defendant. But the basis of the present suit is that the plaintiff is entitled to present possession as a sub-tenant. Both these being different, I do not think that there is any substance in the plea of limitation.”
I am unable to follow this reasoning. No doubt, the plaintiff in a suit under Order 21, rule 103 institutes the suit to establish the right which he claims to the present possession of the property. The claim to evict the obstructor, which was put forward by the owner, was on the ground that he was only a sub-tenant. This the sub-tenant resisted claiming certain superior rights in the property. When it was found in the summary proceedings that he was only a sub-tenant and eviction ordered, he filed a suit to have the summary order set aside. The basis of the order being the sub-tenancy of the obstructor, I fail to see how the effect of the order can be got over by contending that previously the obstructor did not admit his subtenancy, but had been persisting in his claim to independent rights and that now only he is coming forward admitting his sub-tenancy. If the sub-tenancy is admitted the validity of the order is beyond question. When in Second Appeal, the order of the trial Court holding that the obstructor was a sub-tenant was confirmed, the Court was not making out for the first time a relationship which did not previously exist. The effect of the findings in the previous proceedings is, that the obstructor had been a sub-tenant from the beginning of his tenancy. The judgment in the Second Appeal, confirming the findings of the Courts below affirming the view taken in the summary proceedings, cannot give rise to a fresh cause of action for resuscitation of the proceedings; it does not confer any fresh title to the obstructor for him to start on a third round of litigation on it. The question in the prior proceedings which got a finality by the dismissal of the Second Appeal, was whether the obstructor was a sub-tenant. The owner's right to evict the obstructor was based on the sub-tenancy only and if the finality of that order is not otherwise affected, say by reason of the repeal of the old Rent Control Act of 1949 and the fresh enactment in 1960, the order has to stand. If the order directing the removal of any obstruction by the sub-tenant is not otherwise a nullity, it cannot be ignored; its effect could be got round only in the way pointed out by law and the obstructor has tried the remedy and failed. The learned Additional Judge himself notices that any declaration granted to the plaintiff in the present suit would amount to upholding the obstruction which the plaintiff had put forward in the execution proceedings but feels helpless in the face of the averments in the new plaint. But does it answer the existence of an order of the Civil Court overruling the claim of the obstructor to possession by a judicial order which had obtained a finalityě By simply by-passing the order the sub-tenant cannot get over the order. The order if not superseded otherwise has to be set aside by a suit filed within one year. Assuming that the basis of the present claim is different, as the object even now is to maintain only the present possession, the very effort in the prior suit, both the letter and the spirit of the Code of Civil Procedure and the Limitation Act would require that this suit must be looked upon as a second suit to get over the same order for removal of obstruction. It is the substance of the plea that counts, not the form in which it is presented, or the language in which it is couched. Rights of parties cannot be concluded that way nor liabilities evaded. Unless it is established that the order for removal of obstruction has been superseded by the New Act, as contended for the obstructor, the suit would be clearly barred by limitation, besides res judicata.
In a suit instituted under Order 21, rule 103 of the Code of Civil Procedure by a person in possession who is sought to be dispossessed the questions that are tried are questions of title to the present possession. The claim to the same relief cannot be tried once over again between the same parties, just because in the latter suit the title on which relief is claimed purports to be different from the one the plaintiff had put forward earlier. The opposite party had resisted the plaintiff's claim on the very title of sub-tenancy now conceded, and succeeded in non-suiting the plaintiff on the very title. There is no plea of any subsequent change in the jural relationship, or acquisition of any independent and paramount title since the owner obtained his order of eviction for founding the second suit.
The crucial point for consideration is whether by reason of the repeal of the Rent Control Act of 1949 under which the order in question was passed and the enactment of 1960, the plaintiff had acquired new rights which he could set up against any fresh proceedings for his dispossession in execution. The appellate Court is of the view that under the New Act, an order for eviction will not be binding on a sub-tenant unless he had been made a party even in the proceedings before the Rent Controller between the landlord and the chief tenant. In that view, relying on section 35 of the New Act, the learned Additional Judge would hold that the sub-tenant not having been impleaded as a party to the eviction proceedings as required under section 26 of the New Act he is not bound by the order. Thus holding against the owner the suit has been decreed and an unqualified declaration and injunction granted to the plaintiff.
Here again, I find there is a misunderstanding of the relevant provisions in the Rent Control Act relating to a sub-tenant. It must first be noticed that the sub-tenant as such has not been given any protection under the Act. We are not concerned here with the relationship between the tenant and the sub-tenant. The embargo against eviction is only in favour of tenants. section 10 of the New Act, which corresponds to section 7 of the old act, starts with the prohibition ‘a tenant shall not be evicted whether in execution of a decree or otherwise, except, in accordance with the provisions of this section or sections 14 to 16. ‘It is clear that no protection is given to a sub-tenant from being evicted. Any rights he can claim to continue in possession must therefore be looked for under the common law. In the 1949 Rent Control Act, section 12 (c) specifically provided that any order for the eviction of the tenant passed under the Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. Under the present Act of 1960, which repeals the 1949 Act, the related provision, section 26, is different and runs thus:
“Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants who were made parties in the application for eviction but any person who became a sub-tenant after the date of the application for eviction shall be bound by the order of eviction and be evicted as if he were a party to the proceedings, provided that such order was not obtained by fraud or collusion.” Strong reliance is placed on this provision by learned Counsel for the obstructor. He would have this read with section 35 of the New Act which contains inter alia the following saving clauses.
“Notwithstanding the repeal of the said Act (XXV of 1949) …………all………….. orders passed or deemed to have been passed, decisions made or deemed to have been made, proceedings or action taken or deemed to have been taken, and things done or deemed to have been done under any provision of the said Act shall be deemed to have been made, issued, passed, taken or done by the appropriate authority under the corresponding provision of this Act and shall have effect accordingly.”
By clause (b) it is provided:
“ Any liability or penalty incurred or deemed to have been incurred………………any application made or deemed to have been made………………..under any provision of the said Act shall be deemed to have been incurred………………..made or commenced under the corresponding provision of this Act.”
The argument is that, under the New Act, the sub-tenant must be made a party to the eviction proceedings. Section 26 states it shall be binding on the sub-tenant if made a party. It is argued that by implication the order would not be binding on the sub-tenant if he is not made a party; and that it followed that as the order of eviction now in questions must under section 35 be deemed to be one under the New Act and as admittedly the sub-tenant was not a party to the proceedings before the Rent Controller the order ceased to be binding on the sub-tenant, on the New Act coming into force.
This argument in my opinion proceeds on a fallacy. Section 26 does not say that if a sub-tenant is not impleaded it shall not be binding on him. No doubt under the Old Act, the provision was only that an order passed against a tenant was finding on the sub-tenant, in the absence of any fraud or collusion and there is a substantial variation in the new section. The object of the particular provision in the Old Act and the effect of the variation by the New Act can be appreciated only if the general law in regard to the matter and the processual law relating to execution of the order in question is understood. Under section 9 of the old act, the order for eviction under section 7 or section 8 and orders on appeal or execution therefrom have to be executed in the Civil Courts indicated and they shall be executed as if it were a decree passed by that Court. The corresponding provision under the present Act is section 18 and there is no material change therein from the old provision. Under both the Acts, there is a provision taking away appeals from orders passed in execution. Obviously this would refer to orders appealable under section 47, Civil Procedure Code. It is settled law that a decree in ejectment passed against a tenant at the instance of a landlord is not only binding upon the tenant, but also upon his sub-tenants provided they have no right, independent of the right of the tenant in the demised premises. Under Order 21, rule 35, Civil Procedure Code where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, if necessary by removing any person bound by the decree who refused to vacate the property. Therefore the landlord who has obtained an order for eviction will be entitled under this provision to have the premises delivered to him, if necessary removing any sub-tenant in possession as he would be bound by the order for eviction. If the eviction order had been obtained collusively or by fraud, it is an established principle of jurisprudence that it is void as against every person who is not a party to the decree or order. section 12-C of the Act of 1949 only declared these principles to avoid any contention that these principles of law may not apply to proceedings in execution under the Rent Control Act. But a sub-tenant not a party to the proceeding against whom possession is sought under Order 21, rule 35 of the, Code of Civil Procedure may set up independent right to continue in possession of the demised premises. He may for instance set up his own title or he may plead a direct tenancy as in the present case, apart from contending that the eviction order had been obtained fraudulently and in collusion. In such circumstances, the provisions of Order 21, rule 97 have to be availed of by the decree-holder and thereunder if the Court is satisfied that the objection was wanton and made without just cause, the obstruction could be directed to be removed and the decree-holder placed in possession dispossessing the sub-tenant. If the Court finds that the obstruction was from a person claiming in good faith to be in possession of the property on his own account, the application of the decree-holder would get dismissed. In the former case, the obstructor would have to make out his claim to possession in a suit instituted by him and in the latter case, the obstructor's possession could be maintained pending determination of his title. These provisions of Order 21, namely, rule 35 and rules 98 to 105 while securing to the decree-holder possession of the property in execution against persons bound by the decree, ensure the continuance in possession of a stranger to the decree who in good faith puts forward a claim to continue in possession on his own account or on account of some person other than the judgment-debtor pending the determination of the title to possession in a suit to be instituted under Order 21, rule 103 of the Code of Civil Procedure. The scope of section 26 of the New Act must be understood in this context. The Rent Control Act purports to regulate in a cheap and expeditious way the relationship between landlord and tenant in respect of buildings. Statutorily providing for the impleading of sub-tenants even before the passing of the eviction order, the possibility of further prolonged proceedings and a long drawn out suit under Order 21, rules 97 to 1033 are obviated. While as a general proposition a sub-tenant's interest ceases with that of the tenant and he could claim no tangible right to the property, there may be cases as indicated above where it may be possible for him to question the determination of the head lease. It must be noted that where the tenancy is for a specific period agreed upon between the landlord and the tenant, the landlord will not be entitled to apply under section 10 sub- section (3) of the Rent Control Act of 1960 for possession of the building before the expiry of the period. If there is lawful sub-letting in such a case with the written consent of the landlord, it may be that the tenant cannot in collusion with the landlord determine his own tenancy and thereby seek to put an end to the sub-tenancy. It may be that in such circumstances the sub-tenant may be entitled to continue in possession till the determination of the agreed period. In Mellor v. Watkins Mellish, L.J., observed:
“It is a rule of law that if there is a lessee, and he has created an under-lease or any other legal interest, if the lease is forfeited, then the under-lessee, or the person who claims under the lessee, loses his estate as well as the lessee himself; but if the lessee surrenders he cannot, by his own voluntary act in surrendering, prejudice the estate of the under-lessee or the person who claims under him.”
Section 26 only facilitates enquiries in such circumstances at the time of passing the order for eviction itself. While it seeks to ensure that the sub-tenants are not evicted straightaway in execution by snap orders of eviction obtained behind their backs when they may in fact have a present right to continue in possession it saves the landlord from further prolonged litigation at the stage of execution. But this enabling provision in the absence of specific language cannot be construed to affect the well-established principle that a sub-tenant is bound by the order for possession against the tenant. The Act does not say that a sub-tenant is a necessary party to a proceeding for eviction. I am unable to read in the provision more than what is found therein. It will be an intolerable position if the landlord is bound to implead each and every sub-tenant with whom he had no privity of contract and about whom he may know little in a case where he is lawfully entitled to vacant possession as against his tenant. There may be scores of them in a particular “building: the landlord would only be incurring the risk of obstruction proceedings by not impleading them. In Yusuf v. Jyotishchandra. Banerji, the learned Judges discussing the position of a sub-tenant vis- -vis the head landlord hold that when the landlord obtains a decree in ejectment on forfeiture or determination of the lease by notice against his tenant, the latter's sub-tenants licensees or servants in actual possession of the premises are “persons bound by the decree” within the meaning of rule 35 of Order 21 of the Code of Civil Procedure. In Jafferji Ibrahim Ji v. Miyadin Mangal, on an application under Order 21 rule 97 of the Code of Civil Procedure in execution of a decree in ejectment against a tenant where the obstructor relied upon the old bombay rent act, it is observed:
“No doubt a plaintiff suing for possession may find it advantageous to join all the persons in possession of the suit premises to avoid difficulties which may otherwise arise when he attempts to execute his decree. But there is nothing in the bombay rent act which gives persons a better right to obstruct the execution of the decree than they had apart from the Act. ”
The present obstructor is in no better position than the obstructors in that case. It is needless to carry the discussion further as there has been a full consideration of the question, if I may say so with respect, by my learned brother Ramamurthi J., in Ramachandra Chetty v. Mothaliyandan Chettiar. That was also a case under the earlier Rent Control Act, (XXV of 1949) and the question for consideration was whether on the repeal of the Act, the order for eviction could be executed against a sub-tenant who had not been impleaded in the proceedings before the Rent Controller as a party respondent as provided in the 1960 Act. The learned Judge observes at page 267:
“If before Act XVIII of 1960 an order has become an enforceable and executable order, by reason of the particular provision in section 9 read with section 7-A of the old Act, it cannot cease to-be an executable or enforceable order by reason of section 35 of the Act ; such an interpretation would result in this absurd consequence, that an order for eviction obtained by the landlord under the old Act of 1949 will become absolutely useless and the landlord will be obliged to commence fresh proceedings. I have no doubt whatsoever that the Legislature never intended that section 35 should have such an effect………………………………………………………………..In my opinion section 26 must receive a limited application read with section 35 (2) (a) only where the scheme of the enactment can be carried out. In other words section 26 read with section 35 would apply only in so far as they are applicable to a particular situation. But if it would involve a fresh trial reopening the entire matter section 26 cannot possibly have application to such a situation. Even otherwise I am not inclined to agree with the learned Counsel for the petitioner that if the subtenant is not impleaded under section 26, the order for eviction cannot be executed against the subtenant. It is settled law that if a decree for eviction is passed against the main tenant, the order of eviction can be straightaway enforced and executed as against the sub-tenant. I do not think that by enacting section 26 it was the intention of the Legislature to make deliberate departure from this settled and accepted position in law.”
In the present case the matter has gone beyond the stage of the landlord securing for himself an executable order. He has put the order into execution under the earlier Act itself under section 9 of the Act in the civil Court for delivery of possession in execution. The civil Court had become seized of the matter as if it were a decree passed by that Court. Once the matter had gone to the City Civil Court to be dealt with as a decree of that Court, its further course has to be governed by the provisions of the Code, unless there is a modification of the Procedure by the express provisions of the Rent Act. There is no such modification and orders passed in proceedings in execution would therefore be binding upon the parties thereto, the finality being governed by the provisions of the Code. As pointed out by the Division Bench of this Court in Narayanaswami v. Renuka Devi, on an application for execution of an order of eviction passed by the Controller being presented to the concered District Munsif (in the present case the City Civil Court) he has to execute the order as if it were a decree for possession passed by him.
Learned Counsel for the sub-tenant has not placed before me any authority for the position that by the repeal of Madras Act- XXV of 1949 the orders passed in execution by the City Civil Court have become nullities. The observations in Natesa v. Dhanapal Bus Service, relied on have no application in the interpretation of the statutory provisions now under consideration. As shown earlier even the order of eviction in H.R.C. No. 3036 of 1965 continues to be a perfectly valid order which binds the sub-tenant and could therefore be executed against him.
In the result, the plaintiff's prayers for a declaration that the order for eviction passed in H.R.C. No. 3036 of 1965 is unexecutable as against him and for a consequential injunction fail. The judgment and decree of the Court of First Instance dismissing the suit has therefore to stand. The Second Appeal is accordingly allowed. The decree and judgment of the trial Court are restored and the judgment and decree in appeal set aside. The Order as to costs made by the trial Court will stand. The appellant will be entitled to his costs in the Second Appeal. The parties will bear their respective costs in the lower appellate Court. The plaintiff will have time till 31st October, 1966 to vacate and surrender vacant possession.
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