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

8. There are two decisions of this Court which have to be considered in this connexion. The first is Ezra v. Gubbay [1920] 47 Cal. 907 in which some opinion was expressed that where an under-tenant was not made a party to an action in ejectment the decree-holder could not proceed to eject him in execution of the decree. That was the case of a decree obtained upon forfeiture of a term and the question arose at the time when an application for execution was made and a subtenant intervened. This fact would bring the case within the principle of the English law under Order 12, Rule 25 of the Rules of the Supreme Court in England. Ezra's case [1920] 47 Cal. 907 was subsequently considered and distinguished in Ram Kissen Das v. Binraj Choudhuri A.I.R. 1923 Cal. 691 where it was definitely held by the learned Judge that in an action in ejectment a subtenant need not have been made a party and a decree obtained against his lessor was binding upon him. Ezra's case [1920] 47 Cal. 907 was distinguished probably on the ground that it was a case of forfeiture though I do not see the force of the distinction. Both these cases were decided by learned Judges sitting on the original side and are not binding upon us. But I am of opinion that the view taken in the later case of Ram Kissen Das A.I.R. 1923 Cal. 691 is in accordance with the law. A decree in ejectment passed 'against a losses at the instance of a lessor is not only binding upon the lessee but also upon his subtenants provided they have no right independent of the right of their lessor in the demised premises. The learned Munsif, in my opinion, has taken the correct view of the matter.