Calcutta High Court
Sampatraj Pagaria vs Delta International Ltd. & Another on 15 March, 1991
Equivalent citations: AIR1992CAL153, AIR 1992 CALCUTTA 153
ORDER
1. This is an application for rejection of the plaint and for stay of all further proceedings in suit No. 691 of 1989 (Sampatraj Pagaria v. Delta International Pvt. Ltd. and another). It is the case of the petitioner that by and under a registered indenture of lease dated July 10, 1977 the predecessor in interest of the petitioner, the Council House Properties Pvt. Ltd., demised unto the predecessor in interest of the respondent No. 2, the Eagle Star Insurance Company Ltd., the entirety of the third, fourth, fifth and sixth floor of the premises No. 4, Government Place (North) "Eagle House", Calcutta for a term of 21 years commencing on and from June 14, 1967 at and for a monthly rental of Rs. 10,770.30 p. and service charges of Rs. 7,180.20 p. on terms and conditions mentioned in the said lease. Council House Properties Pvt. Ltd. Was amalgamated with the petitioner by an order passed by this court in company proceeding, as a result whereof all the right, title and interest of the said Council House Properties Pvt. Ltd., the transferer company, stood transferred to and vested in the petitioner, the transferee company. The respondent/ defendant No. 2 is the successor in interest of M/ s. Eagle Star Insurance Company and prior to May 1984 was known as Oriental Fire and General Insurance Company Ltd. The petitioner instituted a suit in this court being suit No. 883 of 1987 against the said defendant No. 2 herein claiming decree for khas possession of the suit premises and a sum of Rs. 2,40,000/ - and further mesne profits. The said suit was filed alleging inter alia subletting' of the 3rd, 4th, 5th and 6th floors of the said premises to various persons including the plaintiff in the instant suit without consent of the petitioner and/ or his predecessor in interest. In the said suit an application was made for judgment upon admission by the petitioner and after hearing counsel for the parties the trial Judge was inclined to allow the said application and ultimately passed a decree on June 9, 1989. At the suggestion of the parties, the said decree for eviction passed against the Oriental Insurance Co. Ltd. was adjusted. Before the said decree could be put into execution the plaintiff herein instituted the instant suit praying for the following reliefs:
"(a) A declaration that the plaintiff is a monthly tenant in respect of a room measuring about 850 sq. ft. and a bathroom on the 6th floor of the Eagle House, No. 4, Government Place North, Calcutta 700001 more particularly described in the Schedule hereto annexed and included in the said Annexure 'A';
(b) Declaration that the decree passed in Suit No. 883 of 1987 (Messrs. Delta International Limited v. The Oriental Insurance Company Limited) is not binding upon the plaintiff and is not executable against the plaintiff;
(c) The said decree be adjudged void and set aside and/or cancelled in so far as it is directed against the plaintiff;
(d) Perpetual injunction restraining the defendants, their servants and agents from in any manner disturbing or interfering with the possession, occupation and enjoyment of the said room on the 6th floor occupied by the plaintiff and the said bath-room and all amenities and facilities -- hitherto enjoyed by the plaintiff including supply of water and electricity;
(e) Receiver;
(f) Injunction;
(g) Costs;
(h) Such other and further reliefs to which the plaintiff is entitled."
It has been alleged that on a plain reading of the plaint in the instant suit it would be manifest that M/s. N. F. Buckley which was a proprietary concern of Norman Frank Buck-ley was a sub-tenant under the defendant No. 2 in respect of a portion of the demised premises until 1984. Thereafter the plaintiff allegedly acquired the said business of M/s. N. F. Buckley from Norman Frank Buckley, the sole proprietor thereof. Prior to 1984 the plaintiff had no right, title or interest whatsoever in respect of the suit premises. It also appears from the plaint that the plaintiff is claiming sub-tenancy under the defendant No. 2 by virtue of and under the said indenture of lease dated July 10, 1967. It has been alleged that the plaintiffs claim in the suit arises through the defendant No. 2 and as a representative of the said defendant within the meaning of the provisions of Section 47 of the Code of Civil Procedure 1908. It is the contention of the petitioner that the plaintiff cannot have any better or higher rights than that of the said defendant No. 2 in respect of the suit premises. It has been further alleged that by virtue of the said decree dated June 9, 1989 the relationship of landlord and tenant by and between the petitioner and the defendant No. 2 under the said lease dated July 10, 1967 came to an end. It is the contention of the petitioner that Section 47 of the Code of Civil Procedure, 1908 inter alia provides that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. In the premises the instant suit is barred by the provision of Section 47 of the Code of Civil Procedure and is liable to be rejected. It is the case of the petitioner that the suit being barred under Section 47 is liable to be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure.
2. Learned Advocate for the petitioner referred to Order 21 Rule 35 (1) of the Code of Civil Procedure and submitted that in respect of a decree for immovable property possession thereof shall be delivered in favour of the decree-holder by removing any person bound by the decree who refused to vacatfi the property and therefore, the plaintiff in the instant suit being bound by the decree passed in the previous suit, the Court is entitled to remove him and deliver possession of the property to the decree-holder in the said suit. The question, therefore, relates to execution, discharge and satisfaction of the decree and the instant suit, it has been submitted, is really barred and is not maintainable. Mr. P. K. Roy and Mr. Ranjan Deb, learned Advocates for the petitioner also relied upon the following decisions in support of their contention.
1. Rupchand Gupta v. Raghuvansbi (Private) Ltd. and another .
3. M. P. Shreevastave v. Mrs. Veena reportedin .
4. Unreported decision in the case of Akh-tar Hossain & Another v. Mohammad Shoaid & Others in Suit No. 162 of 1986.
It has also been argued on behalf of the petitioners that the amendments to the Civil Procedure Code in Order 21 Rule 97 onwards up to Order 21 Rule 106 have enlarged the scope of execution proceedings and even questions of title to the property can be adjudicated and the said proceedings may be adjudicated under the aforesaid sections and as such the instant suit is clearly barred and liable to be rejected. It has also been submitted that Section 9 of the Code of Civil Procedure also provides that the court shall have jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Since in this case the suit is barred under Order 47 of the Code of Civil Procedure the Court will not have jurisdiction to try such suit also under Section 9 of the Code of Civil Procedure.
3. Mr. Ahin Chowdhury, learned Advocate for the respondent/ plaintiff on the other hand submitted that it is not correct to allege that the suit is barred under Section 47 of the Code of Civil Procedure. Section 47 provides for bar of a suit relating to execution, discharge or satisfaction of the decree. In the instant suit there is no question of execution, discharge or satisfaction of the decree. On the contrary the plaintiff has challenged the validity of the decree itself in the said suit. He has further submitted that the amendments to order 21 Rule 97 to Order 21 Rule 106 does not have any bearing in the instant suit inasmuch as no question relating to discharge, satisfaction or execution of the decree is involved in the instant suit. He has referred to the plaint in the suit and submitted that such a suit cannot be said to be barred under Order 47. In fact he has made a prayer for declaration that the plaintiff is a monthly tenant. He has also prayed for a declaration that the decree passed in Suit No. 883 of 1987 (M/s. Delta International Ltd. & Anrs. v. Oriental Fire and General Insurance Co. Ltd.) is not binding upon the plaintiff and is not executable against him. He has also prayed that the said decree be adjudged void and set aside and/or cancelled. The learned Advocate submitted that the executing court has no power to declare a decree as void or to set aside or to cancel a decree. Since in the plaint he has alleged that the said decree passed in the said Suit No. 883 of 1987 he had a right to challenge the right for possession in an appropriate proceeding. In support of his contention the learned Advocate relied upon the following decisions:
1. M. P. Sreevastave v. Veena .
2. Jagat Enterprises v. Anup Kumar Daw and Ors. .
3. Sudindra and Budan reported in (1886) ILR 9 Madras 80 at 83.
4. Dhani Ram Mahta v. Lumeswar Singh and Murlilal Mahta reported in (1896) ILR 23 Calcutta 639.
4. It has further been submitted by Mr. Chowdhury learned Advocate for the plaintiff that in the instant case no execution proceeding has been instituted and as such the plaintiff has no option to raise this question before the executing court. He has further submitted that assuming in a given case the decree holder does not choose to enitiate execution proceeding for more than 10 years since the limitation is up to 12 years will the suit by the defendant in the meantime claiming his right, title and interest in the property be barred or will he have to wait for such adjudication until the execution case is instituted by the decree-holder.
5. I have considered the respective sub-missions of the parties and the decisions cited from the bar. It is well settled that the decree passed against a tenant is binding against the sub-tenants. Under such circumstances there cannot be any doubt that the decree passed in suit No. 883 of 1987 is binding against the plaintiff in the instant suit who is admittedly a sub-tenant and is bound by the aforesaid decree. The question, therefore, arises whether such a sub-tenant can have independent right to bring an action challenging the decree. In the case of Rupchand Gupta v. Raghuvanshee Pvt. Ltd. and another an ex parte decree for ejectment was passed against the tenant. The tenant agreed with the plaintiff landlord that the suit for ejectment would not be contested when the suit was instituted against the tenant/defendant, the tenant did not contest the said suit and an ex parte decree was passed. Plaintiff did not implead the subtenant. Under such circumstances it was held that such an act on the part of the tenant and landlord does not amount to collusion or fraud. The Supreme Court has also observed as follows:
"It is quite clear that the law does not require that the sub-lessee need be made a Party. It has been rightly pointed out by the High Court that in all cases where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows them and so omission cannot be said to be an improper act." On the fact of the said judgment it is clear that the decree passed in the earlier ejectment suit being Suit No. 883 of 1987 is binding upon the plaintiff in the instant suit and he cannot claim an independent right to challenge the decree. In the plaint the plaintiff has claimed that he is entitled to a declaration that the decree is not binding upon him and should be adjudged as void as it was obtained by fraud or collusion. From the particulars of the fraud and collusion alleged in the plaint in the instant suit issues which may arise for determination in the instant suit can be gone into in the execution proceeding itself under the amended provisions of the Civil Procedure Code. Such question raised in the suit are really questions affecting execution, discharge or satisfaction of the decree and as such are barred under section 47 of the Code of Civil Procedure. In the case of Jagat Enterprises v. Anup Kumar Daw the question if a sub-tenant would be bound by a decree passed against a tenant and under what circumstances he can challenge such a decree was considered by the Division Bench of this court and while analysing the facts of the said case and referring to the earlier decisions on the point the Division Bench observed in paragraphs 8,9 and 10 of the said judgment at page 403 of the said report as follows:
"8. The position, therefore, appears to be as follows:
(i) The decree for possession against the lessee would be binding on the sub-lessee when the interest of the sub-lessee is extinguished along with it, that is to say, the determination of the lessee's right necessarily extinguishes the right of the sub-lessee, (ii) the above proposition will not apply if the interest of the sub-lessee is not annulled by the decree for possession against the lessee and the sublessee is entitled to his tenancy, independent of lease or if the sub-lessee acquires the statutory right or protection which he could assert against the lessor, (iii) the sub-lessee will also be entitled to challenge the decree on the ground that it was obtained by fraud or collusion. Under Section 115 of the Transfer of Property Act 1882, the forfeiture of a lease is fraud of the under lessee or, where relief against forfeiture is granted does not annul the sub-lease.
9. In such circumstances it will be open for the sub-lessee to challenge the decree for recovery of possession passed against the lessee in appropriate proceeding. It was so done in the said suit by the sub-lessee where his suit was for declaration of his tenancy right independent of the lessee and for permanent injunction restraining the landlord decree holder from taking khas possession thereof in execution of the decree against the lessee.
10. It thus appears to us that though under the law the decree for possession against the lessee is binding' on the sub-lease created by him, the sub-lessee is entitled to take steps to resist the decree on the above grounds as may be available to him. This right does not mean or imply that the sub-lessee is entitled on his own to be added as a party in the eviction such against the lessee in his own right when he is not made a party and on his case he has an independent right in respect of his tenancy and is thus not bound by any decree as may be obtained by the landlord in the eviction suit against the lessee or when the decree was obtained in fraud of the sub-lessee.
It, therefore, appears that in a suit for eviction of the lessee the alleged sub-lessee, if he is not made a party is not entitled to be impleaded in such a suit on his own to assert his own independent right or statutory protection as a necessary party. The sub-lessee in such a case has his remedy to assert or defend his right or to challenge the decree as being fraud of his right all or any other appropriate proceedings to be initiated by him. Now what would be such appropriate proceeding. If the sub-lessee challenges the decree and claims independent title or right or protection it can be gone into in the execution proceeding itself by virtue of the amendment to order 21 rule 97 up to order 21 rule 106. In view of order 21 rule 101 as amended all questions relating to right, title or interest in the property arising between the parties to a proceedings shall be determined by the Court dealing with the application for execution and not by a separate suit. Therefore, the right, title and interest that may have been claimed by the plaintiff in the instant suit will be clearly within the scope of the execution proceeding and as such will relate to discharge, satisfaction or execution of the decree and will be a bar, under Section 47 of Amendment Act of 1976 original sub-section (2) of Section 47 of the Code of Civil Procedure has been omitted. Under the said original sub-section (2) of Secton 47 it was open to court subject to limitation to treat a proceeding as a suit or a suit as a proceeding. With the consequential amendments incorporated by 1976 Act in the provision relating to execution under Order 21 Rule 97 to order 21 rule 106 the said sub-section (2) has been deleted. By the said amendment to Order 21 Rule 98 and Rule 101 it has been provided that any order passed pursuant to the aforesaid provision will be in the nature of a decree and as such in effect such proceedings will be in the nature of a suit also. The said provisions by way of amendment thereby does not permit of filing of any suit if it is otherwise barred under Section 47. Previously such a suit could have been treated as a proceeding subject to question of limitation. In terms of sub-sections (2), (3) (4) of Section 13 of the West Bengal Premises Tenancy Act the subtenants mentioned therein are necessary parties in eviction proceeding against the tenants as otherwise the decree against the tenants will not be binding on them. It has been specifically alleged in the plaint in the instant suit that the plaintiff was occupying the suit premises as a lawful monthly tenant with the consent and approval of the original lessor. It has also been alleged that the defendant No. 2 accepted the plaintiff as a lawful monthly tenant all throughout and accepted the rent till July 1988 and had written to the defendant No. i that the plaintiff was a lawful and bona fide tenant under the defendant No. 2 with the knowledge consent and approval of the lessor. It is also the case of the plaintiff that it is a lawful subtenant and by submitting to a decree and entering into arrangement or compromise with the defendant No. 2 in the said suit exposed its lawful sub-tenant to the risk of being evicted. It has also been alleged in the plaint that the said decree was procured by fraud only to get rid of the lawful sub-tenants. The question, therefore, arises in the instant suit whether the plaintiff is a lawful subtenant so that the decree passed in the previous suit may be said to be not binding upon the plaintiff. Can that question be gone into in the execution proceeding itself. No doubt it has been held in the Division Bench Judgment in the case of Jagat Enterprises v. Anup Kumar Daw (supra) that such a lawful subtenant is not bound by the decree against the tenant and is entitled to institute appropriate proceeding but what will be that appropriate proceeding ? When the aforesaid judgment was delivered in Jagat Enterprises v. Anup Kumar Daw and others (supra) the amendment to the Civil Procedure Code relating to execution proceeding and Section 47 was not enacted. Subsequent amendment of the execution proceeding being enacted in 1976 along with the amendment to S. 47 make it quite clear that even in execution proceeding questions relating to title can be gone into and such a relief praying a declaration that the decree is not binding may be made in the execution proceeding itself as already noted.
6. The un reported judgment and decision of the Division Bench of this court in the case of Appeal No. of 1986, Suit No. 162 of 1986 (Akhter Hussain v. Mohammed Shaid) was relied upon by the learned Advocates for the petitioner. In the aforesaid decision the material facts inter alia leading to the said appeal are that one Sheik Jamiruddin at the material time was a tenant under Mukhter Ahmed Kamal, the respondent No. 3 herein of one room situated on the ground floor of premises No. 37, Mirza Galib Street, Calcutta. Jamiruddin used to run a hotel in the said room.
7. On or about the 2nd February, 1978 the respondent No. 3 filed an ejectment suit against Jamiruddin in the City Civil Court, Calcutta being Ejectment Suit No. 151 of 1978.
8. The said suit was decreed ex parte against Jamiruddin on the 20th July, 1978. The respondent No. 3 put the said decree into execution. During the pendency of the execution proceedings, Jamiruddin died on the 29th December, 1978.
9. The respondent No. 3 however proceeded with the execution of the said decree. It is on record that the respondent No. 3 alleged that a further notice had been served on the deceased Jamiruddin on the 6th February, 1979 in the pending proceedings under Order 21, Rule 97 of the Code of Civil Procedure.
10. On the 30th May, 1979 the respondent No. 3 obtained possession of the said room in execution of the said decree, with police help, and on the 31st May, 1979, the respondent No. 3 let out the said room to Mohammed Shoaid and Mohammed Jakaria, the respondents Nos. 1 and 2 herein at rent of Rs. 110/- per month.
11. The appellant Akhtar Hossain and Azhar Hussain the appellants are the sons and the legal heirs and representatives of Jamiruddin. On the 4th June, 1979, the appellants filed an application under Order IX, Rule 13 of the Code of Civil Procedure in the Ejectment Suit No. 141 of 1979 for setting aside of the ex parte decree. By an order dated the 4th August, 1981 the said application was dismissed. From the said order of dismissal the appellants preferred an appeal in this Court marked as P.M.A. No. 704 of 1981. The appellants succeeded in the said appeal. It was held that the Ejectment Suit No. 151 of 1978 had been decreed ex parte wrongly as no proper service had been effected on the tenant. The ex parte decree passed in the Ejectment Suit No. 151 of 1978 was set aside and the suit was restored to file.
12. Thereafter the appellants filed an application against the respondent No. 3 under Section 144 of the Code of Civil Procedure in the City Civil Court, Calcutta, for restitution of possession of the said room. The proceeding, marked as Misc. Case No. 384 of 1985 was disposed of by an order passed on the 4th February, 1986.
13. It was contended inter alia by the respondent No. 3 who contested the said application that the appellants were not the heirs of Jamiruddin, that the appellant No. 1 Akhtar Hossain had no authority to sign the pleadings on behalf of the other heirs and legal representatives of Jamiruddin. It was also contended that the said room had been let out to new tenants since :
14. The learned Judge rejected the contentions of the respondent No. 3 and held that the status of the heirs and legal representatives of Jamiruddin had not been challenged before this Court in F. M. A. No. 704 of 1981 and that the appellant No. 1 had been only authorised to sign the pleadings on behalf of the other heirs and legal representatives. He held further that the new tenants who had been inducted were or would be deemed to be the representatives of the landlord, the respondent No. 3 and (is) bound by the order passed by the High Court. It was held that the appellants were entitled to be restituted to the position which prevailed before the ex parte decree was passed. The application under Section 144 was allowed and the respondent No. 3 was directed to restore possession of the said room in dispute to the heirs and legal representatives of Jamiruddin.
15.Thereafter on or about 13th March, 1986 the respondents Nos. 1 and 2 who claim to be he new tenants in the said room filed the above suit in this Court against the appellants and the respondent No. 2 claiming, inter alia, a declaration that the respondents Nos. 1 and 2 were monthly tenants in respect of the said room in the said premises under the respondent No. 3 on terms and conditions recorded in an agreement in writing dated the 31st May, 1979 and as such they were entitled to remain and continue in undisturbed possession of the said room; a declaration that the said order dated the 4th February, 1986 passed by the City Civil Court, Calcutta in the said Misc. Case No. 384 of 1985 was not binding on the respondents Nos. 1 and 2 or in respect of the said monthly tenancy in the said room and that the respondents Nos. 1 and 2 could not be evicted from the said room by virtue of the said order, if necessary, the said order dated the 4th February, 1986 be set aside; a declaration that the respondents Nos. 1 and 2 be not evicted from the said room except in accordance with the West Bengal Premises Tenancy Act, 1956; a perpetual injunction restraining the appellants from acting upon or giving effect to the said order dated the 4th February, 1986 against the respondents Nos, 1 and 2 or in respect of their tenancy in the said room and from interfering with or disturbing the enjoyment and peaceful possession of the respondents Nos. 1 and 2 in the said room in any manner and mandatory injunction directing the appellants not to act upon or give effect to the said order dated the 4th February, 1986 so far as the respondents Nos. 1 and 2 and their tenancy in the said room were concerned and other reliefs. On a notice dated the 20th March, 1986 the respondents Nos. 1 and made an application in the above suit in this Court for, inter alia, the following interim reliefs:--
(a) A temporary injunction restraining the appellants and the respondent No. 3 from acting upon or giving any effect against the respondents Nos. 1 and 2 to the said order dated the 4th February, 1986 and further restraining the appellants and the respondent No. 3 from giving effect to the said order in respect of the monthly tenancy of the respondents Nos. 1 and 2 in the said room or interfering with or disturbing the enjoyment and peaceful possession of the respondents Nos. 1 and 2 therein.
(b) A temporary injunction directing the appellants and the respondent No. 3 not to act upon or give effect to the said order dated the 4th February 1984, so far as the respondents Nos. 1 and 2 and their tenancy in the said room was concerned.
16. On the 20th March, 1986 an ex parte order was passed in the said application of the respondents Nos. I and 2 as follows:
"Petitioners possession shall not be dis" turbed by virtue of order dated 4th February, 1986 passed by the learned Judge, 7th Bench, City Civil Court, Calcutta, in Misc. Case No. 384 of 1985 until disposal of the application. Matter to appeal as application in the list irrespective of filing Affidavit of Service."
17. On the 24th March, 1986 the appellants orally applied for vacating the said interim order passed on the 20th March, 1986. It was contended that the suit and the interlocutory application made therein were prima facie not maintainable in view of the provisions of Sections 47 and 144 of the Code of Civil Procedure. It was contended further that the tenancy claimed by the respondents Nos. 1 and 2 was invalid, null and void. The learned single Judge declined to vacate the interim order passed on 20th March and gave directions for filing affidavit.
18. Appeal was preferred from the orders dated the 20th and the 24th March, 1986 passed by the learned single Judge.
19. The question for determination before the Division Bench was whether the proceedings initiated by the appellants under Section 144 of the Code of Civil Procedure and proceedings in execution and if the remedies and the forum available to the respondents Nos. 1 and 2 in respect of the said proceedings and orders passed therein would primarily depend on the determination of the said question. The Division Bench in this connection took into consideration the Supreme Court decision in the case of Mahijibhai Mohanbhai Barot v. Patel Mahibhai Gokal-bhai, therein it was held that having regard to the history of Section 144, an application made thereunder had to be treated as an application in execution of the appellate decree granting relief to the appellants including the consequential relief of restitution. The Division Bench thereafter considered the amended Section 47 of the Code of Civil Procedure as also the definition of degree provided in Section 2(2). The Division Bench also took into consideration the provision of S. 144 of the Code of Civil Procedure. The Divison Bench held that an order passed under S. 144 of the Code is a decree under the Code and all questions arising between the parties to such an order relating to execution or satisfaction or discharge of such a decree will have to be determined by the court executing the same under Section 47 of the Code. It was further held in the facts of the said case that all questions relating to the restoration or restitution of possession of the said room in dispute to the appellants are to be determined in the proceedings under Section 144 of the Code and not by way of separate suit. The questions raised in the suit could well have been initiated under Section 144 of the proceedings. Accordingly the appeal was allowed by the Division Bench. In the case of Sailendra Nath Bhattacharjce v. Bijan Lal Chakravorty it was held by the Division Bench of this Court at page 292 (of AIR):
"If the interest of the subordinate holder is of such a character that it is entirely dependent on that of the superior holder and automatically comes to an end as soon as the superior interest is extinguished, the subordinate holder would be a privy to the judgment obtained against the superior holder and would be bound by it even though he was not a party to the action. If the interest of the lessee, therefore, is determined in such a way that the interest of the sub-lessee is extinguished along with it, a lawful judgment against the lessee which gives effect to the determination of the lessee's right must of necessity extinguish the subordinate rights of the under-tenant. In such cases it is immaterial whether the interest of the undertenant began before or after the suit. There-fore, a sub-lessee would be bound by a decree for possession obtained by the lesser against the lessee if the eviction is based upon a ground which determines the under-least also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him. If, however, the decree for possession proceeds on a ground which does not by itself annul the sub-lease, the decree would not be binding on the sub-lessee nor could the sub-lessee be evicted in execution of the decree if he had acquired a statutory right of protection, e.g.. under the Bengal Tenancy Act which he could assert against the lessor. Within these limits a sub-lessee could be held to be bound by a decree obtained against his lessor and when he is so bound he ayi be ousted in execution of the decree obtained against his lessor under 0.21, R. 35, Civil P. C. though he was not made a party to the suit itself. The fact that the sub-lessee was given a permanent right by the lessee and was non-ejectible at his pleasure by itself would not make any difference if in a judgment properly obtained it is held that the superior interest was not permanent and has been duly determined by a notice to quit."
Following the aforesaid Division Bench judgment another Division Bench of this court in the case of Benimadhab Mahrotra v. Howrah Flour Mills Ltd. :
"Though a decree against a lessee is otherwise binding upon a sub-lessee save and except the sub-lessee has got independent right of his own, yet such a decree must not be collusive one."
The Division Bench judgment and decision in the case of Shesh Kumar Pradhan Shesdeo v. Keshbo son of Narayan Aghariya may be considered in this connection. In paragraph 3 of the said judgment at page 168 of the said report the Division Bench observed as follows:
"A perusal of the old and new rules would go to show that under the old rules was no specific power conferred on the Executing Court to finally decide the question of right, title and interest in the property in dispute as is now conferred by the new R. 101. All that the court was directed to determine under the old Rule 101 was whether the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor and in case it was found that he was in bona fide possession on his own account, the court was required to direct that he be put into possession. Against an order made under old Rule 101 whether the claim was allowed or dismissed by the Executing Court no party had any right of appeal. The party aggrieved, however, had a right to file a suit conferred on him by the old Rule 103 and subject to the result of the suit the order passed under the old Rule 101 was conclusive, The scheme of the new Rules disclosed by the new Rr. 101 and 103 is that the Executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the Executing Court has the force and effect and is subject to the same condition as to appeal as if it were a decree and a suit is not maintainable to challenge the order."
The Division Bench of the Madhya Pradesh High Court on a question of reference by a learned single Judge in the case of Dattatray v. Mangal held as appears from paragraph 11 of the said judgment at page 86 of the said report to the following effect:
"For the reasons given above, our answer to the question referred is as follows:
If an order is passed by an Executing Court after 1st February, 1977 disposing of an application under Order 21, Rule 97 which was pending on that date, the order passed by the Executing Court is appealable under the provisions of the amended Code and the aggrieved party has no right to file a suit under the provisions of the Code as it stood before its amendment.
There will be no order as to costs of this reference."
The said question was also considered by a learned single Judge of Andhra Pradesh High Court in the case of Smt. Tahera Sayeed v. M.Shanmugam . The relevant portion of the judgment inter alia to the effect is set out from paragraph 4 of the said judgment at page 208 :
"4. The rival contentions give rise to the first question whether the petition is maintainable. If it is held that the petition is not maintainable, then the need to go into other questions does not arise. Order 21, Rule 35(1) of the Code provides that where a decree is for delivery of immovable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree who refused to vacate the property. When resistance to delivery of possession is caused, Order21, Rule 97 comes into operation to take aid of. It provides that, where the holder of a decree for the possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. On making such application, the Court shall adjudicate it under sub-rule (2) thereof, Rule 99(1) of Order 21 gives a right to any person who is dispossessed by the decree-holder or the purchaser to make the application for restitution. When either of those applications have been filed, under R. 98(1) the Court is enjoined to determine the questions, referred to in Rule 101, -which postulates that all questions, including the questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under R. 97 or R, 99 or their representatives, and relevant to the adjudication of the application, shall be determined dealing with those applications and not by a separate suit. Thereafter, the Court is given power, when it is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property and, where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf to be detained in the civil prison for a term which may extend to thirty days. The person dispossessed shall be entitled to restitution under 0.21, R.98(l)(a). Under R. 103, the adjudication made under R. 98 or R. 100, shall have the same force and subject to the same conditions as to an appeal or otherwise as if it were a decree. Under R. 104, every order made under R. 101 or R. 103, shall be subject to the result of any juit that may be pending on the date of the commencement of the proceeding in which such order is matte if in such suit the party against whom the order under R. 101 or R. 103 is made has sought to establish a right which he claims to the present possession of the property.
It is to be remembered that prior to the Civil Procedure Code Amendment Act, 1976, the enquiry under Rr. 97 and 99 was only summary subject to right of suit whereas the questions relating to right, title or interest were to be established. With a view to shorten the litigation and the execution is given quitus expeditiously right of suit is taken away and enquiry is enjoined in the proceedings under R. 98 of O. 21 itself and the order therein is treated to be decree and it is subject to appeal."
Division Bench judgment and decision in the case of Deb Prokash Set v. Hariprosad Mallick reported in (1978) 88 CWN 222 (sic) may also be taken note of. The appellant in the said case, an alleged sub-lessee had resisted and obstructed execution of a decree unsuccessfully in the Executing Court which had been obtained by the present respondent (the lessor) against his tenant. He had filed the appeal against the said order adjudicating upon his claim. After filing the appeal the said appellant filed a suit in the City Civil Court, Calcutta. The respondent raised a preliminary objection urging that the suit was not maintainable in view of the amended provisions of Order 21, Rules 101 and 103 of the Code of Civil Procedure. The suit was held maintainable by the trial court. The said respondent then moved this court in revision challenging the correctness of the said order. The appeal and the revisional application arising out of many questions were heard analogously. It was held by this Court that lease was purported to be terminated by forfeiture and a decree had been obtained against her without being vitiated by fraud or collusion and the person claiming as sublessee cannot successfully assail the said decree or can resist or obstruct the decree holder from recovering the possession. It was also held in the revisional application that sub-section (3) of Section 97 of the Civil Procedure Code is applicable to suits, appeals and proceedings pending at the Sate of commencement of the amended provisions with effect from February 1, 1977. The precise question before the Division Bench was when the Executing Court had already investigated the complaint of resistance, or obstruction made against a person and came to the finding that he had no just cause to resist or obstruct the execution of the decree, whether such an unsuccessful resistor or obstructor can institute an independent suit challenging the determination made under the provisions of Rr. 97 to 103 of 0.21 of the Code of Civil Procedure. Under the amended Rule 103 of Order 21 of the Code any party not being a judgment-debtor against whom an order is made under Rules 98 and 101 could institute a suit to establish the right to which he claims to present possession of the property. The Civil Procedure Code (Amendment) Act, 1976 has substituted the said Rule 103 of Order21 under which such orders are to be treated as decrees, i.e., as adjudications conclusively determined being the rights of the parties with regard to all matters specified in Rule 101 of Order21 of the Code. Under the amended provisions of Rule 101 of Order 21 of the Code all questions (including the question of right, title or interest in the property) arising between the parties to a proceeding an application under Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the court dealing with the application not by a separate suit. "For this purpose the legislature, by inter alia, using the expression be deemed to have jurisdiction to decide such questions" under Rule 101 of Order21 has introduced a legal fiction and has overriden any contrary law and has vested the Executing Court with powers greater than these conferred by Section 47 of the Code."
The Division Bench also observed in this connection at paragraph 9 of the said judgment at page 227 of the said report as follows:
"Plainly the object of enacting these new provisions under Rules 97 to 103 is to avoid delay and prolongation of proceeding relating to execution of decree for recovery of possession of immovable property by providing for conclusive adjudication of all questions arising between the parties to the application under the said provisions. When queslions have been determined by the Executing Court a separate suit would be barred. In the instant case such determination has been already made in the aforesaid miscellaneous case under Order 21, Rule 97 of the Code. We have already affirmed the order of the trial court upon the said application."
23. It is true that the Division Bench did not consider the wider question whether a person can at all institute a suit for establishing that he is not bound by the decree passed against a third party. In fact the said question was not before the Division Bench in view of the fact that the Executing Court has already gone into the said question. The question, however, in the instant case would be if the instant suit would be barred under Section 47 of the Code of Civil Procedure in view of the fact that the same question will also come up for consideration in the event execution proceeding is initiated. The present S. 47 as amended by 1976 Act has to be considered along with the amendments made under the said Act of the provisions relating to execution under O. 21, R. 93 onwards.
24. Section 47 of the Civil Procedure Code before its amendment is set out he re in below:
"47 -- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation.-- For the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed, and a purchaser at a sale in execution of the decree are parties to the suit."
By Amendment Act, 1976 sub-section (2) has been deleted and the following portion has been added after sub-section (3):
"Explanation I : For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed arc parties to the suit.
Explanation II: (a) For the purpose of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to the execution, discharge or satisfaction of the decree within the meaning of this section".
Along with it amendment has been effected in Order 21, Rule 97 to Rule 103 conferring on the executing court the right to decide or adjudicating on the question of title of any person claiming to be in possession of the suit property other than those who are bound by the said decree unless the said title is derived independently or challenge the said decree on the ground of fraud or collusion. However, the Court can adjudicate on the said title in an execution proceeding which is to be treated as a suit and order passed therein is to be treated as decree from which an appeal lies as an appeal from a decree. The said Order 21, Rule 97 to Rule 103 prior to 1976 amendment and after amendment may be referred to in this connection.
"97. Resistance or obstruction to possession or immovable property. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
98. Resistance or obstruction by judgment-debtor. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.
99. Resistance or obstruction by bona fide claimant. Where the Court is satisfied that the resistance or construction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.
100. Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
101. Bona fide claimant to be restored to possession. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the properly.
102. Rules not applicable to transferee lite pendents. Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
103. Orders conclusive subject to regular suit. Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order be conclusive.
Order 21, Rule 97 to Rule. 106 after amendment:
"97. Resistance or obstruction to possession of immovable property. (1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under, sub-rule (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Order after adjudication -- (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2) --
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession -- Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination --
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudi cation of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
102. Rules not applicable to transferee pendente life -- Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation -- In this rule, "transfer" includes a transfer by operation of law.
103. Orders to be treated as decrees --Where any application has been adjudicated upon under Rule 98 or Rule 100 the order made thereon shall have the same force and be subject to the same conditions as to an appeal. or otherwise as if it were a decree.
104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit. Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.
105. Hearing of application (1) The Court, before which an application under any of the foregoing rules of this order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Explanation -- An application referred to in sub-rule (1) includes a claim or objection made under Rule 58.
106. Setting aside orders passed ex parte, etc. (1) The applicant, against whom an order is made under sub-rule (2), Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where in the case of an ex parte order, the notice was not daly served, within thirty days from the date when the applicant had knowledge of the order."
25. It has been held in the case of Narinder Kumar v. H. C. Mehta that it is permissible to make an application claiming that the decree was incapable of execution before an execution application is filed.
26. In the case of Imdad Ali v. Jagan Lal reported in Vol. XVII Allahabad 478 it has been held that Section 244 of the Civil Procedure Code applies as well to a dispute arising between the parties contemplated by that section in relation to the execution of a decree after it has been executed, as it would to a dispute between such parties relating to the execution of a decree before it had been executed.
27. It may be noted in this connection that Section 244 of Code of Civil Procedure 1895 corresponds to Section 47 of the present Civil Procedure Code.
28. In the case of Ramaswami Nathan v. M. P. M. Muthiah Chetti it has been held by the Division Bench of the Madras High Court that no separate suit can be brought on the basis of an executable judgment. The facts, in that case, were that the plaintiff, the first defendant's father and two others carried on a partnership business at Zanzibar. O. S. Nd. 143 of 1909 was filed in the Subordinate Court of Madras East for its dissolution. In the said suit, the present plaintiff was the 5th plaintiff and the father of the present 1st defendant was the 1st defendant. A preliminary decree was passed on 27th October, 1909, and a Commissioner was appointed. The Subordinate Court of Ramnand, to whose file the suit was then transferred, confirmed the report of the Commissioner. Paragraph 6 of the order confirming the report runs as follows:
"It is therefore ordered that the 1st defendant do forthwith pay into Court the sum of Rs. 2,611-6-3 being the amount found due to the partnership by him, that, in default of such payment, the 5th plaintiff is appointed Receiver to realise and collect the said amount with power to bring and defend suits in his own name etc."
The final decree of the Subordinate Court was passed on 14th October, 1911. It says --
"that out of the amount collected by the 5th plaintiff as Receiver in realising the only item of assets of Rs.2,611-6-3 due from the 1st defendant he (the 5th plaintiff) do take etc."
There was an appeal to the District Court and the High Court and the Subordinate Court's decree was finally confirmed by the High Court on 5th February, 1917. Meanwhile there was an attempt to execute the decree of the Subordinate Cour! in E. P. No. 309 of 1914. The Subordinate Court of Ramnad held that the decree was unexecut-able and that it contemplated that the 5th plaintiff as Receiver should sue the 1st defendant to recover the amounts (Exhibit G. dated 26th October, 1914). There was no appeal against the said order and the same became binding on all the parties. The effect being the decree should be construed, in the light of that order, to be a decree declaring or creating rights which arc unenforceable in execution and can be enforced only by suit. Therefore, the said suit was filed on 4th February, 1920, for recovery of the said amount. The plaintiff, obtained a decree against the defendant, who preferred an appeal. It was contended on behalf of the defendant-appellant that the suit was not maintainable and was barred by limitation. It was held that it is true, that a claim to recover a sum of money due from one of the partners must form part of the inquiry in the action for winding up of the partnership and no suit will lie after a suit for an account is barred by limitation. Gopala Chetty v. Vijayaraghava-chariar (1). But the respondent contends that the judgment (as construed by the order of 26th October 1914, Exhibit G) creates fresh rights in the place of the older rights and this suit is an action on the judgment. This is obvious, and, provided there is no obstacle in India to a suit on a judgment, when there is no other remedy to enforce the right, the contention ought to prevail.
At common law, actions on judgment lie whether the remedy by execution is available or not. (See Williams v. Jone (2) Hutchinson v, Gillespie (3) Martbeilla Iron Ore Co. v. Alien (4) and Black on judgments Vol. 11, Section 958. This is admitted by the appellant. In India it is settled that no action lies on an executable judgment, the only remedy being execution, the principle being embodied in S. 47 of the Civil Procedure Code. (Section 244 of the Code of 1882). An exception was at one time recognised by which suits were permitted to be brought in the High Court on judgments of a Court of Small Causes in order to obtain execution against immovable property, Bhavani Shankar Shevakram v. Purusadri Kalidas (5) on the ground that where an action on the judgment will give a higher or better remedy, the case is different (see Mancharam Kalliandas v. Bakshe Saheb (6). The exception is now obsolete. (Section 94 of Act XV 1882). But Couch C.J. also says in the case last cited "there are cases in which an action may be the only mode of enforcing a judgment or decree". The present case is such a case. In Mahommed Ghouse Coorooshee v. Mustan Ally (7) Scottland C.J. and Bittleson, J. recognised that such a suit would lie and proceeded to discuss the question of limita-lion. The further remarks in Bhavanishankar Shevakram v. Purusadri Kalidas (5) werf intended to apply only to executable judgments. The decision in Merwanji Nowroji v. Ashabai (8) is also based on the policy of the Civil Procedure Code and applies only to judgments capable of execution. So also are the remarks in Periaswatni Mudaliar v. Seetharama Chettiar (9) "as against the judgment-debtor himself or against the legal representatives it has long been held that under the Indian Processual Law, the remedy is only by way of execution of the decree and that no suit could be brought upon the judgment."
29. The case of Ramanand v. Jai Ram reported in (1921) ILR 43 Allahabad 170 : (AIR 1921 All 369) may be taken note in this connection. In the aforesaid case the facts were, inter alia that on the 28th of April, 1905, the plaintiffs obtained a decree in a suit for pre-emption conditional on their paying Rs. 1,000/- within three months from the date of the decree. The money was paid, but, for one reason or another, the plaintiffs did not get possession of the property either by process in execution, or by private arrangement. On the 25th of April, 1917, the plaintiffs sued for possession of the property awarded to them by the decree of 1905.
30. It was held by the Division Bench of the Allahabad High Court, that the suit was barred by Section 47 of the Code of Civil Procedure. While disposing of the said appeal the Division Bench observed as follows:
"We have given our best consideration to the question before us and we are of opinion that, both on authority and on a correct interpretation of S. 47 of the Code of Civil Procedure, the present suit was not maintainable, stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question "relating to the execution discharge or satisfaction" of the former decree and cannot be determined by a separate suit. The plaintiffs' claim in reality is that they obtained a decree for possession of this property, the defendants have not given them possession in spite of the said decree, and therefore the Court should compel the defendants to carry out their obligation under that decree. In our opinion such a suit falls clearly within the purview of S. 47 and if it did not, we fail to see what other form of suit would."
31. There is no doubt that the judgment and the decision in suit No. 883 of 1987 (M/s. Delta International Ltd. v. The Oriental Insurance Company Ltd.) is executable against the plaintiff. Merely because no excution proceeding has been initiated will not create any fresh right in favour for determination of a dispute or right arising therefrom which may also be determined in execution proceeding. Accordingly the instant suit in my opinion is barred by the provision of the Section 47 of the Code of Civil Procedure and is not maintainable.
32. There will be an order rejecting the plaint in the instant suit being suit No. 691 of 1989 (Sampatraj Pagaria v. Delta International Ltd.).
33.There will be no order as to costs.
34. The learned Advocate for the plaintiff prays for stay of operation of this judgment and order for a period of three weeks.
35.Such prayer is allowed.
36. Suit dismissed.