TaxTMI 
TaxTMI 
1998 (3) TMI 724
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....imited. 4. Ownership of the building changed from Arun Kumar Jalan and it now vests with the Silverline Forum Private Limited, (the appellant herein) as per registered conveyance deed dated 24-1-1995. Appellant filed a suit for ejectment of the tenant against first respondent under the provisions of West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the "W.B. Act") on two grounds. First is that the tenant respondent had sublet the building without the consent of the landlord and second is that the tenant used it in such a manner as to impair its condition. A decree for ejectment was passed ex-parte on 12-12-1995. Before appellant set out with execution proceedings second respondent-sub-tenant filed a suit (O.S. No. 2997/95) against appellant and some others for a declaration and consequential injuncting orders. Though initially second respondent got an interim order injunction against ejectment it was subsequently vacated on 15-12-1995, but that suit is still pending. 5. In the meanwhile appellant moved for execution of the decree of ejectment. On 20-3-1996, bailiff of the court went to the premises for effecting delivery of possession, but he was resisted by....
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....e is a sub-tenant under the first sub-tenant he cannot even be heard that the decree for ejectment is a nullity or a collusive decree. He pointed out that even the first sub-tenant has never assailed that decree and hence second respondent, who is a sub-tenant under the first sub-tenant, has no competence to question the decree for ejectment. 9. At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the pr....
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....cree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree-holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. 13. In the above context we may refer to Order 21 Rule 35(1) which reads thus: "Where a decree is for the delivery of any 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 refuses to vacate the property." 14. It is clear that executing court can decide whether the resistor or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process con....
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.... agreement with the aforesaid statement of law. 18. We, therefore, agree with the contention of Shri Siddhartha Shankar Ray, learned senior counsel for the second respondent that the High Court went wrong in holding that the contention of second respondent cannot be considered under Order 21 Rule 97 of the Code. But the aforesaid finding is not sufficient to dispose of this appeal. 19. Shri Kapil Sibal contended that second respondent being a sub-tenant under the first sub-tenant he is bound by the decree of ejectment albeit his not being made a party to the suit in which the decree was passed. It is quite clear that second respondent is a tenant under the first sub-tenant. This can be gathered from paragraph 6 of the application which second respondent filed in the execution court. 20. Such a sub-tenant as the second respondent is bound by the decree of ejectment. Section 16 of the W.B. Act deals with "creation and termination of sub-tenancies to be notified." Sub-section (1) of Section 16 relates to sub-tenancies created after the commencement of the W.B. Act. Sub-sections (2) & (3) deal with sub-tenancies created before the commencement of the W.B. Act. As all the sub-t....
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.... sub-section (4), a decree or order for the delivery of possession of any premises shall be binding on every sub-tenant." 24. It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act. 25. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act. 26. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can o....