GAYA NATH GHOSE Vs. AMULYA CHANDRA SARKAR

JUDGEMENT

(1.) The dispute relates to one room, in the ground floor of premises No. 22/1A, Ram. Chand Ghose Lane, Calcutta, The plaintiff instituted a suit for ejectment against several persons. Defendant No. 1, Dinesh "Chandra Ghose, who was admittedly the tenant under the plaintiff was the principal defendant. The plaintiff im-pleaded five other defendants, alleging that they were either sub-tenants or trespassers. The petitioner Gaya Nath Ghose was defendant No. 2. He filed a written statement and asserted that he was a sub-tenant. Defendant No. 3, Badal, defendant No. 4, Rakhal alias Sukhendu, defendant No. 5, Gouranga and defendant No. 6, Rat Mohan, asserted that they were not sub-tenants and had no interest in the premises. Defendants 2 to 6 contended that they were not necessary parties to the suit. On the 13th January 1956, the plaintiff filed a petition stating that defendants Nos. 2 to 6 had asserted a sub-tenancy in their favour In a previous criminal proceeding' and that the Question whether the sub-lease was legally binding on the plaintiff requires to be adjudicated in order that the plaintiff might obtain an effective decree for possession. The plaintiff, therefore, prayed that defendants Nos. 2 to 6 should be retained as parties. By the order dated the 13th January 1956 the learned Judge directed that the names of defendants Nos, 2 to 6 be struck out from the record holding that they were neither necessary nor proper parties. On the 3rd February 1958, the plaintiff obtained a decree for possession against defendant No. 1. On the 8th March 1956, on the application of the plaintiff, a writ of possession in Form No. 11, Appendix E of the Code of Civil' Procedure was issued. Delivery of possession un- der this writ was resisted. The bailiff's report shows that Sukhendu Kumar Ghose and his sister resisted execution.

(2.) By his petitions dated the 19th March 1946 and the 21st March 1956, the plaintiff applied for an order under Order 21, Rule 67 of the Code of Civil Procedure and for police help against (1) the judgment-debtor Dinesh, (2) Sukhendu and (3) his sister, Sovarani. The decree-holder prayed for police help and in the alternative for detention of Sukhendu and Sovarani. Notice was Issued on the opposite parties to show cause. On the 24th April 1956, the petitioner Gaya Nath filed a petition stating that he was a sub-tenant, that he was impleaded as a party to the suit as a subtenant and that resistance was given by Sukhendu and Sovarani on his behalf and asked for time to file his objection. The learned trial Judge rejected this petition of Gaya Nath, holding that he had no locus standi. He then passed the following order:

(3.) The application raises interesting questions with regard to the practice relating to the execution of a decree for recovery of possession of immovable property obtained by a landlord against a tenant and the scope of Rule 35 36 and 97 to 103 of Order 21 of the Civil Procedure Code.