JUDGMENT
S.U. Khan, J.
1. Inspite of sufficient service no one has appeared on behalf of contesting respondents. Heard learned Counsel for the petitioner.
2. Property in dispute is wakf property. The wakf was created through registered deed dated 10.3.1892. On 23.11.1911 the then mutwalli of the wakf executed a lease deed of part of the land comprised in the aforesaid wakf deed in favour of Hafiz Mohammad Haleem with permission to raise constructions, on annual rent of Rs. 350. The lease deed was executed for 99 years starting from 1.1.1912. After the death of original lessee Hafiz Mohd. Haleem the lessee’s rights were inherited by S. M. Bashir. Respondents 3 to 5 Sheo Devi and others, wife and sons of late Babu Ram Mishra instituted O.S. No. 57 of 1954 before Civil Judge, Kanpur against S.M. Bashir for recovery of Rs. 30,000 and odd. The suit was decreed. Thereafter execution application was filed seeking recovery of the decretal amount from the properties in dispute bearing Nos. 13/387, 13/388 and 13/390. Interest of S.M. Bashir, the judgment-debtor under the lease of 1911 was sought to be attached and sold in the execution. Thereupon the petitioner mutwalli of the wakf filed objection under Order XXI, Rule 58, C.P.C. on 29.5.1979. Auction sale took place on the next date, i.e., 30.5.1979. Thereafter objections of the petitioner were dismissed on 24.4.1982 by Additional Civil Judge, Kanpur. Objections had been registered as Misc. Case No. 59 of 1979. Against the said order petitioner filed Civil Appeal No. 413 of 1982. IXth Additional District Judge, Kanpur Nagar dismissed the appeal on 19.7.1986 hence this writ petition. Property was purchased by respondents 9 to 21. Execution application was registered as Execution case No. 8 of 1972.
3. Under Section 60 (1)(kc), C.P.C. it is provided that interest of lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodations apply shall not be liable to attachment and sale in execution of decree. The said sub-section was inserted in the C.P.C. by Section 23 of Act No. 104 of 1976, with effect from 1.2.1977. Under Section 97(2)(g) of Act No. 104 of 1976 dealing with repeal and saving it was provided that the provisions of Section 60 of the Principal Act as amended by Section 23 of the said Act shall not apply to any attachment made before the commencement of the said Section 23. In order to apply the aforesaid provision of Section 60 (1)(kc) it was essential to know the date of attachment. Accordingly on 2.7.2007 and 6.8.2007 petitioner was directed to file copy of attachment order. Petitioner could not obtain copy of attachment order on 7.8.2007, learned Counsel stated that attachment might have taken place in 1972 itself. In view of this Section 60 (1)(kc) C.P.C. does not apply ipso facto.
4. Learned Counsel for the petitioner has cited an authority of the Supreme Court in K.K. Krishnan v. M.K.V. Raghavan AIR 1980 SC 1756. However, the above authority has got no direct bearing on the point in question. In the said authority it has been held that in the absence of express permission by the landlord for subletting, general power of subletting as provided under Section 108 (j), Transfer of Property Act, does not restrict the operation of the provision contained under Kerala Rent Control Act, permitting eviction of tenant on the ground of subletting without consent of the landlord.
True copy of the lease deed of 1911 is Annexure-2 to the writ petition. Under Clause 5 of the lease deed it is provided that the lessee is authorised to sublet the whole or part of the land and any building erected thereon subject to the same conditions which bind the lessee for any term not exceeding 5 years. Under the said clause it is further provided that on sub-letting notice must forthwith be given to the lessor in writing. The question to be decided in this writ petition is as to whether tenants/ lessee’s interest in a residential building covered by U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) may be attached and sold in proceeding for execution of money decree independently of Section 60 (1)(kc), C.P.C. or not. Section 60, C.P.C. provides that:
All saleable property including lands and houses is liable to attachment and sale in execution of a decree.
It may be said that if tenant has got absolute right of sub-letting either express or implied but not prohibited then tenant’s right may be attached and. sold in execution of decree. However, it tenant has got no absolute right to sub-let then tenancy rights cannot be attached or sold in execution of decree. Under old U.P. Rent Control Act (U.P. Act No. 3 of 1947), as well as under new Act (U.P. Act No. 13 of 1972) sub-tenancy is permitted with the consent of the landlord as well as of District Magistrate (Section 25 of U.P. Act No. 13 of 1972). Accordingly, sub-letting even with the express written consent of the landlord is not permissible unless District Magistrate also gives his consent.
5. Accordingly, in my opinion the view of the courts below that as subletting for 5 years was permissible under the lease deed hence auction purchaser could purchase the same right, i.e., tenancy for 5 years is not correct in law.
6. Writ petition is therefore, allowed. Both the impugned orders are set aside.