KHAIRUL KHAN Vs. VISWAMITRA RAM KUMAR

JUDGEMENT

(1.) The instant appeal has been preferred by the appellant against Order No.238 dated 14.9.2000 passed by Shri B.K. Samanta, Judge-in-Charge, 9th Bench, City Civil Court, Calcutta in Misc. Case No.2022 of 1999 arising out of Title Execution Case No.10 of 1994. By the impugned order, the Executing Court has rejected the petition under Order 21 Rule 101 of the Code of Civil Procedure filed by the present appellant Md. Khairul Khan as an appellant before the Executing Court.

(2.) As per the case of the present appellant he is a monthly sub-tenant of Shri Dilip Kr. Dey in respect of a portion of the shop-room lying and situated in the ground floor at premises No.15, Radha Bazar Street since re-numbered as 16A, Radha Bazar Street, Police Station Hare Street, Calcutta at a monthly rental of Rs.150/- per month payable according to English Calendar month. The sub-tenancy of the petitioner was created by the respondent No.4 Dilip Kr. Dey on 23rd December, 1977 and both the appellant/petitioner and the respondent No.4 duly notified the creation of the sub-tenancy in respect of the decretal premises to the superior landlord namely M/s. Fidahusen Ahmedbhoy and Zainulbhoy Ahmedbhoy, a registered partnership firm having its office at 9, Ganesh Chandra Avenue, Calcutta immediately within a week from the date of such creation of tenancy as provided under Section 16(1) of the West Bengal Premises Tenancy Act, 1956 on 30th December, 1977. Having been duly notified as to the creation of such sub-tenancy of the appellant in respect of the decretal premises the aforesaid superior landlord gave necessary consent in writing to the appellant on 9th January 1978. On 4.12.98 for the first time the appellant came to know from one Md. Habib Rahman that the opposite parties filed a Misc. case being No.1757 of 1995 under Order 21 Rule 97 of the Code of Civil Procedure in the City Civil Court at Calcutta for the purpose of executing a decree passed against the respondent No.4 in another Misc. Case under section 144 of the Code of Civil Procedure with the help of the police by way of giving delivery of possession of the entire shop-room including the decretal premises. The appellant obtained necessary information on 23.12.98 whereby he came to know that Title Execution Case No.10/94 was filed by the respondent Nos. 1 to 3 on 9.2.94 against the respondent No.4 before the Registrar, City Civil Court, Calcutta and that the said execution case relates to the shop room including the sub-tenancy of the appellant at premises No.16A, Radha Bazar Street, Calcutta. It was alleged by the appellant that he was a sub-tenant under the respondent No.4 in respect of a portion of the shop room at the said premises in accordance with law. It was further alleged by the appellant that in collusion with the respondent Nos.1 to 3 and with ulterior motive and mala fide intention, the fact as to the existence of a decree sought to be executed was deliberately suppressed to evict the appellant from his existing lawful possession in respect of the suit premises. The appellant, however, alleged that as he was a duly notified sub-tenant, he could only be evicted under the provisions of West Bengal Premises Tenancy Act, 1956 and not otherwise. The appellant further alleged that as per amended provisions of the Code of Civil Procedure when the execution proceeding relating to the decretal premises was pending for delivery of possession thereof filing of fresh suit was a bar. By filing the Misc. Case the petitioner/appellant sought determination of all questions relating to his independent right, title and interest as a lawful and notified sub-tenant under the respondent No.4 in respect of the decretal premises. The appellant prayed for an order that the decree sought to be executed by the respondent Nos.1 to 3 in Misc. Case No.1757/95 with the police help was not binding upon him, inasmuch as, the same was not executable so far as the decretal premises was concerned.

(3.) The Misc. Case was contested by the respondent Nos.1 to 3 by filing a written objection. It was averred inter alia, in their written objection that the appellant was not the representative of the judgment debtor being respondent No.4 nor did he offer any resistance on 3.8.95 out of which the Misc. Case No.1757 of 1995 arose. On his own showing the appellant was at best a sub-tenant without consent of the landlord in writing and such sub-tenancy without the consent of the landlord in writing was illegal under the provisions of law and confers no independent legal right to the appellant to occupy the premises in question. The respondent Nos.1 to 4 apprehended that the appellant was set up by respondent No.4 to delay the execution proceeding. It was further stated that on 22.5.92 the judgment debtor took possession of the suit premises from the decree holder in execution of the decree passed in Title Suit No.107 of 1989 and prior to that admittedly the decree holder was in possession. During the pendency of the litigations the respondent No.4, Dilip Kr. Dey made no whisper as to the alleged sub-tenancy nor at any point of time the alleged sub-tenant was ever in possession. Other material allegations contained in the petition were denied by the respondent Nos.1 to 3 in their own objection.