SHEIKH YUSUF Vs. JYOTISH CHANDRA BANERJEE

JUDGEMENT

(1.) This revision case arises out of an execution proceeding following upon a decree in ejectment. The property in suit is a house in Kidderpur in the suburbs of Calcutta. The plaintiff decree-holder obtained a decree in ejectment against his tenant by serving a notice upon him to quit. When he attempted to take possession of this property in execution of the decree it was found that there were several subtenants under the defendant. All the other tenants vacated but the petitioner who has a biri shop in a small room on the premises refused to vacate. Thereupon the decree holder applied to the Court for police help for delivery of khas possession by ejecting the petitioner. The petitioner thereupon made an application to the executing Court under Section 151, Civil P. C, in which he urged that he could not be evicted in execution of the decree against his lessor but that the proper procedure to be followed by the decree-holder was that under Order 21, Rule 97, Civil P.C. On the suggestion of the Court the decree-holder filed an application also under Order 21, Rule 97, but he at the same time contended that no application under that rule was necessary in this case as the petitioner was bound by the decree. The learned Munsif thereupon proceeded to determine the question as to whether the petitioner could be ejected in execution of the decree against his lessor or it was incumbent upon the decree-holder to proceed under Order 21, Rule 97. After considering the facts of the case and the law the learned Munsif ordered that the decree-holder should be allowed to take khas possession of the disputed property with the help of the police. Against this order the present Rule has been obtained on the ground that the executing Court had no jurisdiction to order eviction of the petitioner except by proceeding under Order 21, Rule 97 and the following rules, as the petitioner was a person other than the judgment-debtor in possession of the property.

(2.) The decree under execution is a decree for delivery of possession of immovable property and was being executed under Order 21, Rule 35 under which possession of the property shall be delivered, if necessary, by removing any person bound by the decree who refuses to vacate the property. The question therefore that falls for determination is whether the petitioner is a person bound by the decree. If he is not so, the only remedy open to the decree-holder is to proceed under Order 21, Rule 97. If he is so, he is liable to be evicted in execution of the decree under Rule 35. The learned advocate for the petitioner argues that the words "any person bound by the decree" are synonymous with "judgment-debtor." In my judgment the words include judgment-debtor as well as any person who may be held under the law as bound by the decree. The word "judgment-debtor" is defined in Section 2 (10), Civil P.C., as meaning any person against whom a decree has been passed or an order capable of execution has been made. If the scope of Rule 35 is limited only in respect of the person against whom a decree has been passed or an order capable of execution has been made then it would have been much easier to use the expression judgment-debtor" in the rule instead of the descriptive clause any person bound by the decree." It is also suggested that the expression is used to include a transferee pendente lite, as hinted in a reported case, but provision has been made in Rule 102 for such a transferee. It may include a person who may have come into possession after the institution of the suit and the legal representative of the judgment- debtor, but need not be confined to such persons only.

(3.) Now it has to be seen whether the petitioner is a person who is bound by the decree. Under Section 115, T. P. Act, he being a sublessee his interest ceased with the forfeiture of the lease and he ceased to have any tangible right to the property. It seems to me that it would bo unreasonable to force a landlord to make in a suit for ejectment against his lessee all the under-lessees or even persons under such under-lessees who may be in actual possession, parties to the suit the nature of which may change from a simple suit for ejectment on forfeiture or determination of the lease. So far as the landlord is concerned the possession is with his lessee. The possession of the lessee may be by his occupying the premises himself or by his allowing other persons to occupy the premises on his behalf either as sublessees or licensees or as servants. It would be most oppressive to insist upon the landlord to make all such persons parties to a suit. For instance in the case of a house in Calcutta which is popularly called "mansion" or Court" there may be some 150 subtenants in occupation of different portions of it. The owner, if the view urged by the petitioner is accepted, will have to make all these persons parties in a suit for ejectment against his lessee. Take another common instance of a market or bazar held under lease. If the owner seeks possession of it by ejecting the lessee, it will be absurd to hold that he must make every squatter or stallholder party to the suit.