Norman Macleod, Kt., C.J.
1. The plaintiffs filed a suit against the defendant to recover possession of their property situated at Bhendy Bazaar which was in the defendant's occupation as a monthly tenant. A consent decree was passed on the 18th of August 1920, whereby it was ordered that the defendant should give to the plaintiffs possession of the whole of the house mentioned in the plaint, excepting the northern half of the ground floor of the said building then in the occupation of the defendant as a shop and the verandah occupied by a fruit-seller, on or before the 1st September 1920. The defendant was also ordered to give vacant possession of the said verandah to the plaintiffs on or before the 15th September 1020. The defendant failed to give possession of the verandah occupied by the fruit-seller, so that the plaintiffs applied for execution of the decree and prayed for delivery of possession of the verandah, but the fruit-seller declined to vacate and consequently the plaintiffs were forced to take out this summons against the fruit-seller asking for an order that he should vacate the premises and pay compensation of Rs 50 per month from the 15th September 1920 till possession was given.
2. The application is made by the plaintiffs in execution of their decree under Order XXI, Rule 97 (Civil Procedure Code) which says:-
Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, be may make an application to the Court complaining of such resistance or obstruction.
3. Rule 98 deals with the obstruction caused by the judgment-debtor or by some other person at his instigation. It is not suggested in this case that the fruit-seller is refusing to vacate at the instigation of the judgment-debtor. Rule 99, therefore, applies, which says :-
Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other that the judgment debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.
4. It must follow that if the Court is not satisfied that the obstruction is being occasioned by a person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court has the power to grant the application.
5. Now, the only justification for the fruit-seller being in occupation of the premises is the agreement of tenancy which originally existed between himself and the judgment-debtor. He does not claim to be in possession on his own account, or to be holding on account of some person other than the judgment-debtor.
6. Under Rule 100 where a person other than the judgment-debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property or where the property is sold in execution of a decree by the purchaser thereof, he may make an application for the Court complaining of such dispossession. So that if the fruit-seller had been dispossessed by the plaintiffs under their decree, he could make an application under Rule 100. Then under Rule 101 if the Court was satisfied that he was in possession of the property on his own account or on account of some person other than the judgment-debtor, it could direct that he should be put back in possession of the property. It is curious that the words 'in good faith1' which appear in Rule 99, do not appear in Rule 101, But if the Court was satisfied that the applicant was not acting in good faith it would be most unlikely that the Court would make an order in his favour, for whether the applicant is the decree-holder or the person dispossessed the same issues arise.
7. However that may be, it seems to me clear that a sub-tenant cannot claim to be in possession of property on his own account, and if admittedly his immediate landlord is the tenant and judgment-debtor, he cannot be in possession on account of some person other than the judgment-debtor. It is obvious, therefore, I that the execution-plaintiff is entitled to get possession of the premises from the sub-tenant; and it' any other construction were placed on Rules 97 and 99 obstruction could be caused to an execution-plaintiff in a suit for possession in a manner which was never contemplated by the Code.
8. Mr. Jinnah for the fruit-Heller relies upon the decision in Ezra v. Gubbay I.L.R(1920) Cal. 907. No doubt the learned Judge in dismissing the execution-plaintiff's application held on his construction of Rule 99 that the under-tenant could be said to claim to be in possession on his own account. That, with all due respect, appears to me to require explanation, for I cannot see how it can be said that an under-tenant is in possession of the premises on his own account. And, in my opinion, those words can only refer to a person who claims to be in possession on his own title. Otherwise it would not be necessary to add the words 'on account of some person other than the judgment-debtor'. The person in possession may either claim to be in possession on his own title or as tenant of some person other than the judgment debtor. But if he claims to be in possession as a tenant of the judgment-debtor, then it seems to me that the Court is bourn to make the order in favour of the execution-plaintiff. Other wise a landlord may get a decree for ejectment against he tenant but may find that decree an absolute nullity if hi tenant had sub-let the premises, as he may have to again fill a suit against the sub-tenant. I have already held that and tenants, though they may claim the benefit of the Bombay rent Act against their immediate Jessor, cannot claim it against the owner of the premises: see Jafferji Ibrahimji v. Miyadin Mangal : (1921)23BOMLR1251 . When a landlord gets a decree for possession against his tenant, and is resisted or obstructed in obtaining possession then it is open to him to apply to the Court to get possession under Order XXI, Rule 97, and if the person resisting or obstructing is in possession as a sub-tenant that person cannot claim under Rule 99 that the application should be dismissed.
9. The summons, therefore, will be made absolute with costs.
10. As regards the summons of 3rd October 1921, it will be discharged. The defendant to pay by way of compensation the rent payable by the fruit-seller to him until vacant possession is delivered to him, No order as to costs on this summons.