D E D J EZRA Vs. JEGUBBAY

JUDGEMENT

(1.) This suit was instituted on the 7th July 1919 by lessor against lessee for recovery of possession of certain premises upon the determination of the term by forfeiture for breach of conditions in the lease. The suit was contested by the lessee unsuccessfully, and an order for recovery of possession was made on 8th December 1919, by which the lessee was given until the 29th February 1920, to make over possession, This not being done, an order, dated 12th March 1920, was obtained by the lessor directing the Sheriff to put him into possession, The Sheriff, on the 8sh April 1920, was obstructed in the execution of this order by a Mrs. Wallace who is respondent to the present application made by the lessor before me as the Judge in Clambers.

(2.) Mr. Pugh, who appears for Mrs. Wallace, admits that his alien, holds as a tenant under the defendant in the suit. He does not file any affidavit on her behalf; but he says that she was in possession as under tenant before the suit was instituted and he indicates a desire to contend, or at least a willingness to allege, (on what grounds I do not know) that the suit was collusive. Mr. Avetoom, for the lessor, contends that, though not a party to the snit, Mrs, Wallace is bound by the decree whether her tenancy began before or after action brought, that she is in law a privy though not a party, and her under-tenancy has determined by the forfeiture of the lease.

(3.) It is not absolutely necessary to join as defendants all persons in possession: in some circumstances it may be wrong and oppressive so to do: Geen v. Herring (1905) 1K.B. 152 : 74 L.J.K.B. 62 : 92 L.T. 37 : 53 W.R. 326 : 21 T.L.R. 93, The risk taken by omitting to join any such person is the risk that after decree he may set up a right to possession, independently of the lease which has become forfeited, whether by equity against the lessor or by other adverse title. This, however, is the extent of the risk and, apart from the Code, I should have "no difficulty in enforcing this decree against Mrs, Wallace, her estate or interest having some to an end with the forfeiture of the lease Minet v. Johnson (1891) 63 L.T. 507 and there being no title of evidence before me as to the action having been Collusive.