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PETITIONER: SILVERLINE FORUM PVT. LTD.

       Vs.

RESPONDENT: RAJIV TRUST AND ANOTHER

DATE OF JUDGMENT:       31/03/1998

BENCH: K.T. THOMAS, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas, J.      Special leave granted .      A sub-tenant,  who  was  not  party  to  a  decree  for eviction, resisted  execution of  the decree  and the  court ordered an  inquiry under  Section 151  of the Code of Civil Procedure (’Code’  for short).  The High  Court of  Calcutta upheld that order and that is challenged in this appeal.      The suit  property is  a flat  in "Harrington  Mansion" situated on  an important  road at  Calcutta. It  was in the ownership of  one Arun Kumar Jalan. He tenanted the premises to Rajiv  Trust (first respondent) on 15-05-1975, who sublet the building  to a  company M/s.  Accounting and Secretarial Service Private  Limited (which will hereinafter he referred to as  "the first  sub-tenant"). Subsequently the first sub- tenant created  another sub-tenancy  under it  in favour  of second  respondent  M/s.  Captain  Shipping  Estate  Private Limited.      Ownership of the building changed from Arun Kumar jalan and it  now vests with the Silverline Forum Private Limited, (the appellant  herein) as  per registered  conveyance  deed dated 24-1-1995. Appellant filed a suit for ejectment of the tenant against first respondent under the provisions of West Bengal premises  Tenancy Act, 1956, (hereinafter referred to as the  "W.B. Act") on two grounds. First is that the tenant respondent had  sublet the  building without  the consent of the landlord and second is that the tenant used it in such a manner as  to impair  its condition.  A decree for ejectment was passed  ex-parte on 12-12-1995. Before appellant set out with execution  proceedings  second  respondent-  sub-tenant filed a  suit (O.S.  No. 2997/95) against appellant and some others  for   a  declaration  and  consequential  injunction orders. Though  initially second  respondent got  an interim order injunction against ejectment it was subsequent vacated on 15-12-1995, but that suit is still pending.      In the  meanwhile appellant  moved for execution of the decree of ejectment. On 20-3-1996, bailiff of the court went to the premises for effecting delivery of possession, but he was resisted by the representatives of the second respondent and he  reported the  matter to the court. When he was again

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directed by  the Court to effect delivery of possession with police help,  he was  unable to dispossess second respondent as the  execution court  has  stayed  dispossession  in  the meantime. Second  respondent filed Miscellaneous Case 556 of 1996 before  the execution  court quoting  order 21 Rule 101 and Section  151 of  the Code, raising a contention that the decree was  passed without  making him  a party and alleging that the  decree was obtained in collusion between appellant and first  respondent Rajiv Trust. Execution court, however, held that  second respondent  being a  third party  resistor cannot avail  himself of  the remedy  provided in Ordered an inquiry to  be conducted  under Section 151 of the Code into the allegations  made by  the second  respondent, as per its order dated  26-4-1976. both  sides,  appellant  and  second respondent, were  aggrieved by  that order and hence both of them challenged it in revision before the High Court.      A learned  Single judge  of  the  Calcutta  High  Court concurred  with   the  view  of  the  execution  court  that grievances of  the second  respondent  cannot  be  canalised through Order  21 Rule  101 presumably  because the  decree- holder has  not moved  the application  for police  help  to remove the  resistance under  order 21  Rule 97 of the Code. Nonetheless,  learned   Single  Judge   observed  that   the application of  second respondent  could be gone into by the court in accordance with the inherent powers of the court as recognised in  Section 51  of the  Code. On the said view of the matter  both revisions were dismissed by the order which is under challenge now.      Shri Siddhartha Shankar Ray, learned senior counsel who argued for  the contesting  parties did not choose to defend the view  of the  learned Single  Judge of  the  High  Court regarding non-availability of the remedy under Order 21 Rule 97 of  the Code. According to the learned counsel, though he could not  agree with that reasoning of the High Court there is no  warrant for  the stand  of the decree-holder that the respondent had  no legal  right  to  assail  the  decree  in execution proceedings.      Shri  Kapil  Sibal,  learned  senior  counsel  for  the appellant -  decree-holder, on the other hand contended that since second respondent has admitted that he is a sub-tenant under the  first sub-tenant he cannot even be heard that the decree for  ejectment is a nullity or a collusive decree. He pointed  out  that  even  the  first  sub-tenant  has  never assailed that  decree and  hence second respondent, who is a sub-tenant under  the first sub-tenant, has no competence to question the decree for ejectment.      At the  outset, we  may observe that it is difficult to agree with  the High  Court that  resistance or obstructions made by  a third  party to the decree of execution cannot be gone into  under Order  21 Rule  97 of the Code. Rules 97 to 106 in  Order 21  of the Code are subsumed under the caption "Resistance to  delivery of  possession to  decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides  that when  the holder of a decree for possession of  immovable property  is resisted or obstructed by- "any  person" in  obtaining possession  of the  property such decree-  holder has  to make an application complaining of the  resistance or  obstruction. Sub-rule  (2)  makes  it incumbent on  the court  to proceed  to adjudicate upon such complaint in accordance with the procedure laid down.      It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder.  Rule 101  stipulates that  all questions "arising  between   the  parties   to  a  proceeding  on  an

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application under rule 97 or rule 99" shall be determined by the executing  court, if such questions are "relevant to the adjudication of  the application".  A  third  party  to  the decree who  offers resistance  would thus  fall  within  the ambit of  Rule 101  if an  adjudication is  warranted  as  a consequence of  the resistance or obstruction made by him to the execution  of the decree. No doubt if the resistance was made by  a transferee  pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether  he is  such transferee and on a finding in the affirmative regarding that point the execution court has to hold  that he has no right to resist in view of the clear language  contained   in  Rule  102.  Exclusion  of  such  a transferee from  raising further contentions is based on the salutary principle  adumbrated in Section 52 of the Transfer of property Act.      When a  decree-holder complains  of resistance  to  the execution of a decree it is incumbent on the execution court to adjudicate  upon it.  But while  making adjudication, the court is  obliged to  determine only such question as may be arising  between   the  parties  to  a  proceeding  on  such complaint and  that such  questions must  be relevant to the adjudication of the complaint.      The words "all questions arising between the parties to a proceeding  on an application under Rule 97" would envelop only such questions as would legally arise for determination between those  parties. In  other words,  the court  is  not obliged to  determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under  rule 101,  must possess two adjuncts. First is that  such questions  should have  legally arisen between the parties,  and the  second is,  such  questions  must  be relevant for  consideration and  determination  between  the parties,  e.g.  if  the  obstructor  admits  that  he  is  a transferee pendente  lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he  purchased the  property. similarly,  a third party, who questions  the validity  of a transfer made by a decree- holder to  an  assignee,  cannot  claim  that  the  question regarding its  validity should  be decided  during execution proceedings. Hence,  it  is  necessary  that  the  questions raised by  the resistor or the obstructor must legally arise between him  and  the  decree-holder.  in  the  adjudication process envisaged  in order  21  Rule  97(2)  of  the  Code, execution court  can decide whether the question raised by a resistor or  obstructor legally  arises between the parties. An answer  to the  said question also would be the result of the adjudication contemplated in the sub-section.      In the  above context  we may  refer to  Order 21  Rule 35(1) which reads thus:      "Where a decree is for the delivery      of    any    immovable    property,      possession   thereof    shall    be      delivered to  the party  to whom it      has been  adjudged, or  too    such      person as he may appoint to receive      delivery on  his  behalf,  and,  if      necessary, by  removing any  person      bound by  the decree who refuses to      vacate the property."      It is clear that executing court can decide whether the resistor or  obstructor is  a person bound by the decree and he refused  to  vacate  the  property.  That  question  also squarely falls  within the adjudicatory process contemplated in Order  21  Rule  97(2)  of  the  Code.  The  adjudication

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mentioned therein  need not  necessarily involve  a detailed enquiry or  collection  of  evidence.  Court  can  make  the adjudication on admitted facts or even on the averments made by the  resistor. Of course the Court can direct the parties to adduce  evidence for  such determination.  If  the  Court deems it necessary.      In Bhanwar Lal vs. Satyanarain and anr. [(1995) (1) SCC 6], a three - judge Bench has stated as under:      "A reading of Order 21, Rule 97 CPC      clearly envisages that "any person"      even including  the judgment-debtor      irrespective  whether   he   claims      derivative title from the judgment-      debtor or  set up  his  own  right,      title  or   interest  de  hors  the      judgment  debtor   and  he  resists      execution of  a  decree,  then  the      court  in  addition  to  the  power      under Rule 35(3) has been empowered      to conduct  an enquiry  whether the      obstruction  by   that  person   in      obtaining possession  of  immovable      property  was  legal  or  not.  The      degree-holder gets  a  right  under      Rule  97  to  make  an  application      against third  parties to  have his      obstruction removed  and an enquiry      thereon could be done."      In Brahmdeo  Chaudhary vs. Rishikesh Prasad Jaiswal and another, [  1997 (3)  SCC 694]  this  Court,  following  the aforesaid decision, made the under-quoted observation:      "It is  pertinent to  note that the      resistance  and/or  obstruction  to      possession of immovable property as      contemplated by  Order 21,  Rule 97      CPC could  have been offered by any      person. The  words ’any  person’ as      contemplated by Order 21, Rule 97 ,      sub-rule  (1)   are   comprehensive      enough  to   include   apart   from      judgment-debtor or  anyone claiming      through him  even persons  claiming      independently   and    who    would      therefore, be  total  strangers  to      the decree.      ...................................      ............ Consequently      it must be held that Respondent 1’s      application dated  6.5.1991  though      seeking only re-issuance of warrant      for delivery of possession with aid      of armed  force in substance sought      to bypass  the previous  resistance      and  obstruction   offered  by  the      appellant on  the spot. Thus it was      squarely covered  by the  sweep  of      Order 21,  Rule  97,  sub-rule  (1)      CPC.   Once   that   happened   the      procedure laid down by sub-rule (2)      hereof had  to be  followed by  the      executing court.  The Court  had to      proceed  to   adjudicate  upon  the      application in  accordance with the      subsequent provisions  contained in      the said order."

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    We are  in  respectful  agreement  with  the  aforesaid statement of law.      We,  therefore,  agree  with  the  contention  of  Shri Siddhartha Shankar  Ray,  learned  senior  counsel  for  the second respondent  that the High Court went wrong in holding that  the   contention  of   second  respondent   cannot  be considered under  Order 21  Rule 97  of the  Code.  But  the aforesaid finding  is not  sufficient  to  dispose  of  this appeal. Shri  Kapil Sibal  contended that  second respondent being a sub-tenant under the first sub-tenant he is bound by the decree of ejectment albeit his not being made a party to the suit  in which  the decree was passed. it is quite clear that second  respondent is  a tenant  under the  first  sub- tenant. This  can  be  gathered  from  paragraph  6  of  the application which  second respondent  filed in the execution court.      Such a  sub-tenant as the second respondent is bound by the decree  of ejectment.  Section 16  of the W.B. Act deals with  "creation  and  termination  of  sub-tenancies  to  be notified." Sub-section  (1) of  Section 16  relates to  sub- tenancies created  after the  commencement of  the W.B. Act. Sub-sections (2)  &  (3)  deal  with  sub-tenancies  created before the  commencement of  the W.B.  Act. As  all the sub- tenancies in  this case  were created after the commencement of the  W.B. Act  it is not necessary to consider the latter two sub-section.  Hence Section  16(1)  alone  is  extracted below:      "(1) Where  after the  commencement      of this  Act, any premises are sub-      let either  in whole  or in part by      the  tenant   with   the   previous      consent in writing of the landlord,      the tenant  and every sub-tenant to      whom the premises are sub-let shall      give notice  to the landlord in the      prescribed manner  of the  creation      of the sub-tenancy within one month      from the  date of  sub  sub-letting      and shall  in the prescribed manner      notify the termination of such sub-      tenancy within  one month  of  such      termination."      A  reading   of  the  sub-section  reveals  that  three additional requisites are also necessary for a sub-tenant to get wiggled  into the  contours of the sub-section. they are (1) the  sub-tenancy should  have  been  created  after  the commencement of  the W.B.  Act;  (2)  the  landlord  of  the premises should  have given written permission to the tenant to create  such sub-tenancy;  (3) the  tenant and  the  sub- tenancy with  in one  month of  such creation. Section 16(2) and 16(3)  deal with  sub-tenants who  got  into  possession before commencement of the West Bengal Act, and they too are obliged to notify the landlord within the time specified.      The sub-tenants  who secure  perch in  Section  16  are afforded with  two advantages  during any  action which  the landlord may  launch  for  eviction  of  the  tenant.  Those advantages are  incorporated in  Section 13(2)  of the  W.B. Act. One  of them  is that such sub-tenant is entitled to be made a party to the suit for recovery of the premises by the landlord. Second  is that  no decree  or order for ejectment shall be  passed against such subtenant except under certain specified conditions.  Thus, sub-section  (2) of  section 13 and Section 16 of the W.B. Act are inextricable inter-twined with each other.      Sub-section (4)  of section  13 of  the W.B. Act has no

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relevance in  the present  case as  it only  deals with  the claim of  a landlord  for eviction  on the  ground  that  he reasonably  requires   the  premises   either  for  his  own occupation or  for the  purposed of  renovation, re-building etc. Now  we may  refer to  Sub-section (3) of Section 13 of the W.B. Act. It reads thus:      "Save as  provided  in  sub-section      (2) and  sub-section (4),  a decree      or  order   for  the   delivery  of      possession of any premises shall be      binding on every sub-tenant."      It  is  the  statutory  mandate  that  the  decree  for ejectment shall  be binding  on every  sub-tenant unless  he falls within  the ambit  of either  sub-section (2)  or sub- section (4)  of Section  13. There is no case for the second respondent that  he has  given any  notice to  the  landlord before the  expiry of  the time schedule fixed in Section 16 of the  Act. Nor has he a case that he would fall within the purview of  the aforesaid  two sub-sections in Section 13 of the W.B. Act.      Of  course,   learned  counsel  for  second  respondent contended that the instrument of lease as between Arun Kumar Jalan and  M/s. Rajiv  Trust contained a term permitting the tenant  to  create  sub-tenancy.  Learned  counsel  for  the appellant  argued   that  such  permission  cannot  be  over borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has  notified the  landlord as envisaged in Section 16(1) of the W.B. Act.      It is clear from Section 16(1) of the W.B. Act that the previous consent  of the  landlord contemplated  therein can only be availed of by his tenant. In other words, the tenant under the  landlord can  use  that  consent  to  sublet  the premises to  another person.  A lease between the tenant and his sub-tenant  would be  governed by  the terms agreed upon between them  and the tenant cannot bind his landlord by any such terms.      In Shantilal  Rampuria and  ors. vs.  M/s Vega  Trading Corporation and  ors. [1989  (3) SCC 552] two judge Bench of this Court  considered the  scope of  Section 16 of the W.B. Act and  held that  "previous  consent  in  writing  of  the landlord  with   respect  to   each-letting  separately   is essential and  a general  authority to  the tenant  in  this regard will not be sufficient in law." In that case, none of the sub-tenant  was impleaded  as party, and this Court held that since  notice under  Section 16  was not  serve don the landlord the non-impleadment will not affect validity of the proceedings for  eviction. Their  Lordships  sought  support from another  two-Judge Bench decision of this Court in M/s. Shalimar Tar  Product ltd.  vs. H.C.  Sharma and ors. [ 1988 (1) SCC  70], in  which similar  provision in the Delhi Rent Control act were considered.      In Juthika  Mulick and  anr. Vs.  Dr. Mahendra Yashwant Bal and  ors. [1995  ( 10  SCC 560],  provisions of W.B. Act were the  subject  matter  for  consideration,  but  nothing contrary to  eh decision  in Shantilal  Rampuria (supra) has been stated  by this  Court. Reference  was also made to the decision in Mahabir Prasad Verma vs. Dr.Surinder Kaur [ 1982 (2) SCC  258]. Though  it related  to the provisions of East Punjab Urban  Rent Restriction  Act,  1949  ,  the  question considered  was  whether  a  sub-tenancy  created  with  the consent of  the  landlord  during  the  subsistence  of  the tenancy would continue to be lawful even after the expiry of the period  of lease.  The answer was in the affirmative. At any rate  that decision  does not  run counter  to the  view

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adopted  by   the  two-judge  Bench  in  shantilal  Rampuria (supra).      Thus, without  any difficulty,  it  can  be  held  that consent given  by the landlord to his tenant for creation of the sub-tenancy  is valid.  Only as between the landlord and his tenant.  Such consent  cannot be used by a sub-tenant to create another  sub-tenancy under  him so  as  to  bind  the landlord.      For the  aforementioned reasons,  we allow  this appeal and set  aside  the  order  under  challenge.  We  hod  that appellant is  entitled to  deliver of possession by removing the obstruction/resistance made by the second respondent.