Forum Pvt. Ltd. Vs. Rajiv Trust & Anr  INSC 197 (31 March 1998)
Thomas, S. Rajendra Babu Thomas, J.
leave granted .
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.
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.
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.
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 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.
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.
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.
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
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.
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.
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
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.
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.
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.
answer to the said question also would be the result of the adjudication
contemplated in the sub-section.
above context we may refer to Order 21 Rule 35(1) which reads thus:
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 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.
Lal vs. Satyanarain and anr. [(1995) (1) SCC 6], a three - judge Bench has
stated as under:
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:
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." We
are in respectful agreement with the aforesaid statement of law.
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.
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.
(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:
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.
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.
(4) of section 13 of the W.B. Act has no 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:
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.
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
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.
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. 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 adopted by the two-judge Bench in shantilal Rampuria (supra).
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.
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.