MOHAMMAD SALIM Vs. MOHAMMAD ASSIM

JUDGEMENT

(1.) -The petitioner filed Title Suit No. 397 of 1983 in the 2nd Court of the learned Munsif at Alipore, 24-Parganas, against the original opposite party Nos. 1 and 2 for declaration and permanent injunction. The petitioner's case as made out in the plaint, inter aha, was that he was a subtenant in respect of one Shop room in premises No. 4/1, Wattagunj Street, now known as Kabithirtha Sarani, Calcutta, at a monthly Rental of Rs. 90 per month inclusive of electricity charges under the opposite party No. 2 who was a tenant in respect of the said premises under the original opposite party No. 1. The petitioner's further case was that on the 21st September, 1964 the petitioner had entered into an agreement with the opposite party No. 2 by which the petitioner was inducted as a sub-tenant with effect frozen 1st September 1964 to which one Md. Ismail of Dr. Sudhir Bose Road, was one of the attesting witnesses. Thereafter such agreement was ratified by another indenture on 1st September, 1966 to which the said Md. Ismail and Md. Ali, the Original opposite party No. 1 (since deceased) who was also the predecessor-in-interest of the opposite party Nos. 1(a) to 1(f) were the attesting witness. The opposite party No. 2 filed Title Suit No. 164 of 1061 against the petitioner for recovery of possession and also one Money Suit being Money Suit No. 50 of 1981 for realising arrears of amount payable treating the petitioner as a licensee but both the suits were dismissed by the trial court on the ground that the petitioner was not a licensee. but a sub-tenant and the said findings were even affirmed by the lower appellate court in Title Appeal No. 885 of 1981. Subsequently, the said Md. Ali brought a suit for ejectment against the opposite party No. 2 without impleading the petitioner as a party therein being Title Suit No. 545 of 1981 and obtained an ex-party decree from the 51th Court of the learned Munsif at Alipore and put the decree in to execution which gave rise to Title Execution Case No. 23 of 1983 and the decree-holder tried to take delivery of possession through police help. The petitioner's further contention was that since the landlord of the first decree had full knowledge and had given written consent in the matter of inducting the petitioner as a subtenant, possession of the disputed shop room could not be taken by the said landlord by virtue of the aforesaid ex-parte decree without impleading the petitioner in the aforesaid Title Suit No. 545 of 1981. In the petitioner's aforesaid Title Suit No. 397, of 1963 the petitioner obtained a temporary injunction which was however, subsequently set aside by the appellate court in Misc. Appeal No. 306 of 1985 and the revisional application moved by the petitioner against the said order of the lower appellate court ultimately was not pressed. Thereafter the apposite parties Nos. 1(a) to 1(f) filed Title Execution Case No. 12 of 1986 for getting possession of the disputed property, under order 21 Rule 35 of the Code of Civil Procedure and in the said title execution case the said opposite parties filed an application for police help under Section 151 of the Code of Civil Procedure which was allowed ex-parte by the executing court vide its order dated 1.3.86. The petitioner subsequently, filed an application for stay of the said title execution case and another application for disposing of the said application for police help determining all questions arising between the parties. In neither of the two aforesaid execution, case the petitioner, however, was made a party and the opposite party No. 2 who was the judgment debtor, filed an application in the subsequent Title Execution Case No. 12 of 1986 stating inter alia, that he had no objection against the execution of the said ex-parte decree obtained against him. The executing court, however, by its order No. 14, dated 4.3.86 rejected both the applications of the petitioner and against the said rejection the petitioner has moved this court in revision and obtained the represent Civil Order.

(2.) Mr. Ghosal, learned Advocate appearing on behalf of the petitioner, however, has referred to the decision of the Supreme Court in the case of M/s. Giridhari Lal & Sons vs. Balbir Nath Mathur & Ors., reported in (1986) 2 S.C.C. page 237 and submitted that since the landlord was a party to the indenture, dated 1st September, -1960 it should be presumed that the landlord had given his previous consent in writing to the creation of sub-tenancy of the petitioner by the opposite party No. 2 and as such the petitioner was not bound by the ex-parte decree obtained by the landlord against the opposite party No. 2 and he could not be evicted in course of execution of the said decree.

(3.) Mr. Mitter learned Advocate appearing on behalf of the opposite parties Nos, 1(a) to 1(f), however, has submitted that since the decree was obtained against lessee the sub-lessee was bound by the said decree under Order 21 Rule 35 of the Code of Civil Procedure and the application far police help under Section 151 of the said Code was also quite maintainable in law and referred to the decisions in the case of Sri Jagatguru Gurushiddaswami Guru Gandharswami. Murusavirmath vs. The Dakshina Maharasthra Digambar Jain Sabha, reported in A.I.R. 1953 S.C., 514, Rupchand Gupta vs. Raghu Vanshi (P) Ltd. and Anr., reported in A.I.R. 1964 S.C. 1889, Saudamini Roy Chowdhury vs. Satyendranath Sarkar reported in 85 C.W,N., 958, Sk. Yusuf vs. Jatish Chandra Banerjee and Ors., reported in 35 C.W.N., 1132 Kanai Lal Das & Ors. vs. Hari Sankar Dutta, reported in 86 C.W.N. 549, Pannalal Bag vs. Santosh Kumari Sikdar, reported in 88 C.W.N., 504, and Sunil Kumar Dutta vs. M/s P. C. Chatterjee & Co. reported in 88 C.W.N., 702.