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3. Thus, ejectment decree was put into execution by Ejectment Execution Case No. 360 of 1966 and the plaintiff lawfully resisted the Court's bailiff on his independent right. The defendants Nos. 1 and 2 however, filed an application under Order 21 Rule 97 C. P. Code against the plaintiff and other tenants. It was found by the Court that it was not possible to accept the plaintiff as a tenant under the original landlord Mohanlal Dey. Hence present suit.

4. The defendants Nos. 1 and 2 contested the suit on a written statement. They denied that the father of the plaintiff was a tenant under Mohanlal Dey and they also denied that the plaintiff was the only son of his father. Their case was that on 20-9-1957 they purchased the premises No. 107A, Durga Charan Mitra Street, Calcutta, with the only tenant Angurbala Dasi in respect of the entire premises at a rental of Rs. 200/- per month. On determination of tenancy they brought a suit for ejectment against Angurbala. It was further contended that from the documents filed in Misc. Case No. 137 of 1968 it transpired for the first time that the plaintiff's father Chanchal Das was a Sub-tenant under Kali Dassi, the sister and predecessor in title of Angurbala, who was the judgment-debtor in the ejectment decree. The plaintiff being a Sub-tenant was said to be bound by the decree passed in the ejectment suit, according to the provisions of the West Bengal Premises Tenancy Act, 1956.

11. It is argued by Mr. Sengupta that the protection under Sub-section (2) (b) of Section 40 cannot override the mandatory provision under Section 16 of the West Bengal Premises Tenancy Act, and the appellant having failed to serve the notice as required under Section 16 of the Act could not be allowed to agitate the decree against Angurbala defendant No. 3 was not binding on him. Thus the decree being binding on him he was liable to be ejected, in execution of the decree against Angurbala. No doubt it was obligatory on the Sub-tenant to serve notice under Section 16, after the Act of 1956 had come into operation but if such a Sub-tenant fails and neglects to do so certain legal consequences would follow. It is not the case of the either party that any order under Section 16 (3) of the Act was passed. As a result, it must be held that the Sub-tenancy of the appellant did not cease and his rights and obligations under Section 12 (1) (c) and Section 13 (2) of the Act of 1950 continued as before.