ORDER
R.N. Misra, J.
1. This is an application under Section 115, Civil Procedure Code directed against an order of the learned Munsif, Berhampur, who dismissed an application made to his court purporting to be under Order 21, Rule 99 and Section 151, Civil Procedure Code by a stranger to the pending execution proceeding. Opposite Party No. 1 obtained an order against opposite Party No. 2 from the House Rent Controller of Berhampur under the provisions of the Orissa House Rent Control Act, 1958 for eviction.
2. There is no dispute that the house in question originally belonged to Opposite Party No. 2. In June 1963 Opposite Party No. 1 purchased it from the said owner and with effect from that date Opposite Party No. 2 continued to be a tenant in respect of the said house under Opposite Party No. 1. The petitioner claims to have got into possession as a sub-tenant under Opposite Party No. 2 in respect of a part of the premises. He was not impleaded in the house rent control proceeding. After the order for eviction was obtained O. E. P. No. 18 of 1969 was initiated for execution of the said order of eviction. In the said proceeding the present petitioner made the application purporting to be under Order 21, Rule 99 read with Section 151, Civil Procedure Code. The allegations in the said petition, so far as material for the present purpose, may be extracted.
“1. The house described in the accompanying schedule to be read as a part of the petition and hereinafter called suit property, is an out-house of a larger house of the Judgment-debtor. The judgment-debtor let out the suit house to the petitioner on oral understanding for locating a shop house on a monthly rent of Rs. 30/- (rupees thirty) per month, and the petitioner started a business shop in cloth piece goods (cut pieces) under the firm name and style of Ramratan Textiles (Regd.) on and from dated 27-11-1963……
2. The judgment-debtor M. V. Suryanarayana borrowed from the petitioner the sum of Rs. 4,000/- (rupees four thousand) in all on different occasions between dated 26-5-1961 to 26-6-1963 as noted by him in a note book, and he made some payment and failed to pay a balance sum of Rs. 3,000/-and odd. He could not pay the said amount and its interest. …….. The petitioner is
thus a statutorily protected tenant entitled to continue in possession till the debt is discharged and is thus not in arrears at all.”
In the Civil Revision application in this Court it has also been stated on affidavit to the following effect:–
“That the petitioner is running a shop house in cloth piece goods under the firm name and style of Ramaratan Textiles (Regd.) on and from 27-11-1963 in a shop room on the main road in Berhampur Town,
That this shop room belongs to the opposite party No. 2 who had permitted the petitioner to occupy the shop room in lieu of the interest payable by him to the petitioner on the amount borrowed by him from the petitioner.”
Thus the petitioner clearly claims the right of a sub-lessee in respect of the premises under opposite party No. 2 the judgment-debtor.
3. The application was made in the executing court on 30-9-1969. It was ordered to be put up on the next day and Was actually taken up on 3-10-1969 as the intervening dates were holidays. On 3-10-1969 the case was heard and orders were passed on 4-10-1969 dismissing the application.
4. The short point which arises really for consideration is as to whether in the execution proceeding the petitioner can be evicted or the execution so far as he is concerned has to be dismissed. Mr. Y. S. N. Murty for the petitioner contends that the petitioner is admittedly in possession of a part of the premises even before the House Kent Control Case No, 10 of 1968 was filed. In the circumstances as he has not been impleaded in the proceeding and no order of eviction has been passed against him he cannot be thrown out of the premises in execution of the order of the House Rent Controller. In support of his proposition he relies upon two decisions of the Calcutta High Court, the first one being reported in AIR 1920 Cal 706; (Ezra v. Gubbay) and the other being reported in, (1954) 93 Cal LJ 369 (Sudhamay Basu v. Raja Ram Ramsamaj Singh).
I must say that the facts of both the cases are absolutely different and these authorities cannot be relied upon in the present case. In the first of the aforesaid Calcutta cases Rankin, J, clearly indicated that if the person sought to be evicted was found to be in possession on his own account execution could not proceed. As a matter of fact it was indicated that in attempting to obtain possession the decree-holder was resisted by the third party and he thereupon applied under Order 21, Rule 97 C. P. C. complaining of the resistance. The third party contended that he was in possession on his own account and that the decree could not be enforced against him in a summary procedure under Order 21. Therein it was held that the third party’s tenancy began before the suit for possession was instituted and, therefore, the decree-holder’s remedy was by a suit against him. The facts of the second Calcutta case are equally different. Therein there was no evidence to show that it was a case of a sub-tenancy. As a matter of fact it was clearly indicated that the stranger’s claim of sub-tenancy was not maintainable. As against these decisions of the Calcutta High Court there are good authorities to the contrary. As a matter of fact there is a clear decision of this Court in (1966) 32 Cut LT 816, (Bisweswar Lal v. Hari Sukla) wherein the learned Chief Justice answered the following question:–
“If sub-tenants are inducted by a tenant without the written consent of the landlord, whether such sub-tenants are necessary parties in a proceeding before the House Rent Controller for eviction of the tenant by the landlord.”
This question was answered in the following way:–
“A sub-tenant inducted without the written consent of the landlord is not at all recognised by the Act. In fact, induction of such a tenant gives the landlord a right for eviction. He cannot be a necessary party in a proceeding for eviction under the Act. If, however, a sub-tenant has been inducted by a tenant with the written consent of the landlord, the sub-tenant is not evictable in execution of an order for eviction passed in favour of the landlord against the tenant to which the sub-tenant is not a parry.”
Reference was made to an earlier decision of the Patna High Court in AIR 1957 Pat 437, (Suresh Mohan v. Shamal Mall) and the following passage from the Patna decision was quoted with approval;
“The order of the Executing Court further shows that the appellant was found to be a sub-lessee of the tenant, Paramananda Jha, and not a tenant under an agreement from the landlord himself as alleged by him. It was conceded by the learned Government Advocate that if the appellant was a sub-lessee from the tenant against whom the order for eviction had been passed, then he was also liable to be evicted.”
On the aforesaid authorities I think the petitioner has no case. An earlier decision of the Bombay High Court reported in ILR 46 Bom 526 = (AIR 1922 Bom 273), (Jafferji Ibrahimji v. Miyadin Mangal), also took the same view.
Chief Justice Macleod was of the view that where in execution of a decree for ejectment obtained by a landlord against his tenant the landlord was obstructed by the opponents claiming to be the tenants of the judgment-debtor and as such entitled to the protection of the Bombay Rent Act, and the landlord applied to the Court for the removal of the obstruction the landlord was entitled to have the obstruction removed, for though the opponents were tenants with regard to their immediate lessor and so entitled to the protection of the Rent Act against him, there was nothing in the Act to protect them against the landlord of the premises, with whom there was no privity of contract. I think the legal position is very clear. In view of the categorical stand taken by the petitioner that he was only a sub-lessee under the tenant of opposite party No. 1 he must stand or fall with the lessor opposite party No. 2. Since there is already an order for eviction which is being duly executed he must also be subjected to such execution.
5. This Civil Revision fails and is dismissed, I do not, however, propose to saddle the petitioner with any costs.