H.H. Kantharia, J.
1. This is an appeal from order passed by the learned Judge of the City Civil Court, Bombay on 22-2-80 in Notice of Motion No. 4478 of 1979 in S.C. Suit No. 881 of 1962 dismissing the application by the present appellant that the execution of a decree be set aside and he be restored the possession of the suit premises.
2. The short facts giving rise to this appeal are that respondent Nos. 1 and 2 (hereinafter referred to as the 'plaintiffs') filed S.C. Suit No. 881 of 1962 in the City Civil Court, Bombay on 22-2-1962 against respondent No. 3 (hereinafter referred to as the 'Defendant') in respect of a shop bearing No. 18, House No. 147/151, Behind Bazar, Bombay -400 003 (hereinafter referred to as the 'suit premises') for declaration that the defendant was a trespasser on the suit premises and that by mandatory and permanent injunction he, his servants and agents be permanently restrained from entering upon the said premises and further that he be ordered to pay to the plaintiffs Rs. 5/- per day or such other amount as may be fixed by the Court as and by way of damages and /or compensation for wrongful occupation of the suit premises at Rs. 150/- from 24-1-62 till the date of the suit and further amount from the date of the suit till their removal. The suit was defended by the defendant. The learned Judge of the City Civil Court by a judgment and order dated 20-8-1969 dismissed the said suit with costs holding that the defendant was granted sub-lease of the premises by the plaintiffs in or about March 1957. Being aggrieved by the said judgment and decree the plaintiffs preferred First Appeal No. 36 of 1970 in this Court. The said appeal was dismissed for want of prosecution on 31-8-1970. After about six years the plaintiffs and the defendant, who acted through his power of attorney holder, made an application to this Court for restoration of the said appeal, by consent. The restoration application was granted. They then filed consent terms dated 5-8-76 in this Court and the plaintiffs obtained a decree as per consent terms and prayers made in the original suit and further the defendant through his power of attorney holder gave an undertaking to hand over the possession of the suit premises to the plaintiffs on or before 10-8-1976. It appears that on 19-8-76 the plaintiffs forcibly dispossessed the appellant from the suit premises. He, therefore took out proceedings under section 145 of the Criminal Procedure Code which were decided in his favour on 7-11-1977 and restoration of the possession of the suit premises was granted to him. The plaintiffs felt aggrieved by the said judgment and order and, therefore, preferred Criminal Revision Application No. 514 of 1977 in the Court of Session, Bombay. The Sessions Court also dismissed the said Revision Application on 6-4-1978 and ordered that the suit premises be unsealed and its possession be given to the appellant on 18-4-1978. Accordingly on 19-4-1978 the possession of the premises was restored to the appellant. It may be stated here that the case of the appellant was that ever since the year 1965 he had been carrying on business of watch repairing in the suit premises under an oral licence granted to him by the defendant and he had a certificate under Shops and Establishments Act in his name as also electricity bills and postal evidence. According to him he was given a power of attorney by the defendant in the year 1961 in order to protect himself from the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act') and the said power of attorney was terminated on 15-3-1976. And as the oral licence granted to him in 1965 was subsisting he had filed a Rent Act Declaratory Suit No. 4958 of 1975 in the Small Causes Court, Bombay against the defendant for a relief that he be declared as the tenant of the suit premises and/or be declared as a deemed tenant under the provisions of Bombay Rent Act as amended by the Maharashtra Act No. XVII of 1973 (hereinafter referred to as the 1973 amended Bombay Rent Act). The said suit was decreed ex parte against the defendant on 31-7-1978. It also appears that on behalf of the defendant a standard rent application was filed by the appellant as his Constituted Attorney for fixation of standard rent but as his power of attorney was revoked the said standard rent application was not proceeded with and stood dismissed. Reverting back to the facts it may be stated here that after the consent decree was passed in the First Appeal No. 36 of 1970 by this Court and after the plaintiffs had to restore the possession of the suit premises back to the appellant under the provisions of section 145 of the Criminal Procedure Code the plaintiffs took out execution proceeding in the Bombay City Civil Court and on 25-10-79 the decree was executed and the appellant was evicted from the suit premises. He, therefore, took out a Notice of Motion No. 4478 of 1979 in S.C. Suit No. 881 of 1962 in the Court of the learned trial Judge for a relief that the execution of the decree be set aside. The learned trial Judge by his impugned order dismissed the said notice of motion. Being aggrieved by the said order the appellant filed the present appeal.
3. Mr. Jha, the learned Counsel appearing on behalf of the appellant, firstly submitted that the appellant was not present in the High Court when the consent decree between the plaintiffs and defendant was passed and that the appellant was not a party to the said decree and, therefore, the said decree was not binding on the appellant. Mr. Jha then submitted that while dismissing the suit of the plaintiffs, the City Civil Court had held that the defendant was granted sub-lease by the plaintiffs and since the defendant who had thus become statutory tenant could grant licence to the appellant and had in fact granted such a licence in 1965 and he was protected under the 1973 amended Bombay Rent Act. Mr. Jha brought to my notice a judgment of this Court by a Single Judge (Rege. J.) in (Writ Petition No. 25 of 1982, decided on 25-3-1983), to press his point that a statutory tenant could grant licence to a person like the present appellant. There is no dispute on this law point but the moot question is whether the appellant was granted a licence by the defendant and whether he was on the suit premises as a licensee of the defendant or as his servant and/or agent. Thus even if the appellant was not a party to consent decree passed by this Court he cannot be dispossessed only if he was a licensee of the defendant and if he was servant and/or agent of the defendant, he does not get protection under the 1973 amended Bombay Rent Act under section 15-A and 14 and could be dispossessed Mr. Jha, very vehemently relied upon a decree passed in favour of the appellant by the Small Causes Court in R.A. Declaratory Suit No. 4958 of 1975 which the appellant had filed against the defendant. This was a decree passed under section 15-A read with section 14 of the 1973 amended Bombay Rent Act. The certified copy of the plaint filed in the said suit somewhere in October 1975 and ex parte decree passed on 31-7-1978 is produced before me by Mr. Parikh, the learned Counsel appearing on behalf of respondent Nos. 1 and 2. A perusal of this document shows that according to the appellant he was granted an oral licence by the defendant in the suit premises in or about the year 1965 and since then he has been in exclusive possession of the suit premises. However, the contention of the appellant in this regard does not seem to be true. First of all, the case of the appellant is that he was granted such a licence to occupy the suit premises in the year 1965 orally. It is not that oral licence cannot be given but grant of such a licence orally itself creates a doubt in one's mind. And the facts and circumstances which I shall presently state fortify one's doubt whether such an oral licence was at all granted by the defendant in favour of the appellant. Thus the declaratory suit was filed by the appellant in the Small Causes Court in the year 1975. On his own admission the case of the appellant is that his power of attorney was revoked on 15-3-1976. It means that when he filed the declaratory suit in the Small Causes Court the power of attorney which was granted in his favour by the defendant was still subsisting and if he was a power of attorney holder he could not have filed such a suit on the ground that in the year 1965 he was granted licence by the defendant. Again, the evidence of the defendant in original suit in the City Civil Court was to the effect that the appellant was working as his servant in the suit premises Mr. Parikh produced here the notes of evidence recorded in that suit and on going through the same I find that it was the case of the defendant that except himself none had any sort of control over his business which was being conducted in the suit premises. Further, the licence of the shop was in his name. The electricity meter was also in his name. He stated that he was in exclusive possession of the suit premises since March 1957. According to him he had been often going out of India and in his absence his servants conducted the shop. At the time when he gave evidence on 13-8-69, he stated that he was working in the shop at that time. His evidence further shows that no repairing work was going on in the suit premises. His evidence then shows that he had been often going to Jedha and would return to Bombay now and then and on some occasions his servant had carried on correspondence on his behalf. He thereafter stated that the salary of his servant (present appellant) was being deducted by him from the income of the shop and he did not check the accounts on return to Bombay because the appellant's father had taught him the work of watch repairs and appellant was like his son and he was faithful. Further clinching evidence which he gave was that he had paid income-tax for the income derived from the business in the shop premises and produced income-tax receipts for the year 1960-61, 1961-62, 1962-63, 1963-64, 1964-65, 1965-66 and 1966-67. In view of this evidence of the defendant which the appellant knew very well, it does not appear to me that the defendant would grant oral licence to the appellant in the year 1965. It is also pertinent to note here that when the appellant filed the declaratory suit in the Small Causes Court in October 1975 he was already a power of attorney holder of the defendant which power was revoked or withdrawn only on 15-3-1976. In other words the appellant had filed the declaratory suit when he was the constituted attorney of the defendant which would mean that he had filed a suit against himself. Again, admittedly a standard rent Application No. 575/SR/73 was filed in the Small Causes Court by the appellant on behalf of the defendant and a certified copy of the said application dated 2-5-1973 shown to me by Mr. Parikh shows that the appellant had signed the said application as constituted attorney of the defendant. Thus on his own admission even in the year 1973 he was the constituted attorney of the defendant and, therefore, it does not lie in his mouth to say that in the year 1965 he was granted licence by defendant in respect of the suit premises. Mr. Jha tried to explain this inconvenient situation by submitting that on account of amendment to the Bombay Rent Act in the year 1959, sub-tenancy could not be created and, therefore, a device was in vogue in Bombay at that time according to which possession of the premises was given to sub-tenants by appointing them constituted attorney of the tenants in respect of such premises so that it could be argued that no subtenancy was created in respect of such premises. I am not able to persuade myself to agree with Mr. Jha because it is common knowledge that when sub-tenancy was prohibited as per amendment to the Bombay Rent Act in 1959, those who were interested in giving their premises to sub-tenants they were doing so as and by way of entering into leave and licence agreements for 11 months and it was with a view to protect such licensees that the Bombay Rent Act was further amended in the year 1973 and such licensees were considered deemed tenants under section 15-A read with section 14 of the said 1973 amended Bombay Rent Act. It is pertinent to note that power of attorney holder can be considered only an agent of the person who gives him a power of attorney and he can never be considered a licensee. Therefore, the submission of Mr. Jha does not appeal to me at all. At the end of his argument Mr. Parikh submitted, and very rightly, that the appellant knew it perfectly well when the consent decree was passed by the High Court or soon thereafter when the proceedings under section 145 of the Criminal Procedure Code were taken by him against the plaintiffs that the plaintiffs were very much interested in the suit premises. He should have therefore, made them parties in the Small Causes Court when he obtained an ex parte decree against the defendant in the declaratory suit. Therefore, Mr. Parikh urged that the ex parte decree passed by Small Causes Court in the declaratory suit of the appellant is not binding on the plaintiffs because although they were necessary parties they were not impleaded so. In reply Mr. Jha submitted that a copy of the plaint filed by the appellant in the Small Causes Court was produced in the proceedings under section 145 of the Criminal Procedure Code and, therefore, the plaintiffs had the knowledge of the fact that such declaratory suit was filed by the appellants against the defendant and they themselves should have taken steps to have been impleaded as parties in the Small Causes Court. It is true that if the plaintiffs so desired they should have got themselves impleaded as parties in the said suit but the fact remains that the appellant who filed such a suit did not join the plaintiffs as necessary parties although he knew that they were interested in the suit premises. In my opinion he did so with ulterior motives. That shows the conduct of the appellant as to how he wanted to snatch a decree from the Small Causes Court which decree would not at all affect the defendant because he was hardly to be found in Bombay as he was often remaining out of India.
4. Under these facts and circumstances, I am unable to hold that the defendant had created a licence in favour of the appellant either orally or otherwise in the year 1965. The appellant was in possession of the suit premises either as a servant of the defendant or as his agent and that being so although he was not a party to the consent decree passed by the High Court he could be dispossessed from the suit premises the manner in which it was done in this case.
5. Mr. Jha's next contention is that the consent decree obtained by the plaintiffs and the defendant after 6 years of the original appeal being dismissed was a decree obtained in collusion and the manner in which it was executed leaves us with no alternative but to set aside such execution. In this respect Mr. Parikh's submission is that the decree of the High Court whether in collusion or otherwise is a decree none the less and if the appellant felt aggrieved by such a decree he could have very well taken proper proceedings in the matter of setting aside the said decree. Not having done that the decree has become final. Let it be emphatically noted here that according to Mr. Parikh the consent decree passed by the High Court was not at all bad in law in any manner. He submitted that since the appellant was only the agent or servant of the defendant in respect of the suit premises he was not a necessary party in the High Court and it cannot be said that the consent decree was obtained behind his back. As regards the mode of the execution of the decree Mr. Parikh vehemently controverted the submissions made by Mr. Jha. According to Mr. Jha, the decree could have been executed only under Order 21, Rule 42 of the Code of Civil Procedure and not under Order 21, Rule 35 of the said Code. Thus Mr. Jha's contention is that the decree passed by the High Court was not one for 'possession' but it was a decree for a 'mandatory and permanent injunction' and could be executed only under the provisions of Order 21, Rule 32. He relied upon a Full Bench decision of Delhi High Court in the case of Sarup Singh v. Daryodhan Singh, : AIR1972Delhi142 in which case a decree for a mandatory injunction directing the petitioner to quit and vacate premises was held to be executable only under Order 21, Rule 32 and not under Order 21, Rule 35 of section 51 of the Civil Procedure Code. There is no dispute that if the decree is not for 'possession' or 'delivery' it could be executed as admitted by Mr. Jha. But the facts in our case are different from those obtaining before Delhi High Court inasmuch as the consent decree passed in out case by the High Court incorporated an undertaking by the defendant to hand over the possession of the suit premises to the plaintiffs by 10-8-76. It may be repeated here that the decree was passed on 5-8-76. Therefore, the decree in terms of mandatory and permanent injunction restraining the defendant and his servants and agents from entering into the suit premises coupled with such an undertaking by the defendant changes the nature of the decree and as submitted by Mr. Parikh such a decree could be executed by resorting to the provisions of Order 21, Rule 35 because such a decree cannot be said to be a decree for injunction simplicitor but it can be called a decree for specific performance.
6. Mr. Jha made a grievance that the name of the appellant was mischievously entered into the application for warrant of possession but the record does not show that the Judge had passed any order on the said application or that the Judge's order taken out by the plaintiffs was signed by the learned Judge. Mr. Parikh's submission here is that since his clients know from the proceedings under section 145 of the Criminal Procedure Code that the appellant was in possession of the suit premises that they were advised to insert his name in the application for warrant of possession in fact Judge's order was prepared and put before the learned Judge of the City Civil Court to sign the same but the learned Judge observed that it was not necessary to sign such Judge's order as the decree could be executed under the provisions of Order 21, Rule 35. Therefore, according to Mr. Parikh, the papers were taken back to the office and as the practice in the City Civil Court prevails the Sheriff's bailiff was asked to execute the decree. At this stage another grievance made by Mr. Jha may be dealt with inasmuch as Mr. Jha submits that at the time of execution the appellant put up a resistance and did obstruct the execution of the decree on the ground that he was in lawful possession of the suit premises but instead of submitting his report regarding such obstruction, and resistance the Sheriff's bailiff after obtaining telephonic instructions from the Deputy Sheriff executed the decree which is not proper. A perusal of the bailiff's report does show that the appellant had put up resistance and had obstructed the execution of the decree but the bailiff enquired of the appellant as to how and why could he obstruct the execution of decree which was general in nature. It appears that the appellant produced before the bailiff an order passed in his favour under the provisions of section 145 of the Criminal Procedure Code which in my opinion would be of no consequence because such an order could only prove that at the relevant time the appellant was in possession of the suit premises which was never disputed. An averment is found in the bailiff's report that the appellant is supposed to have said that he had obtained orders against the defendant and the plaintiffs from the Small Causes Court which was not wholly true because no order was obtained by him against plaintiffs from the Small Causes Court. The appellant had not produced the copy of such an order before the bailiff. It is under these circumstances that the bailiff executed the decree. Now, assuming for the sake of argument that it was the duty of the bailiff not to executed the decree and that he should have made a report and the plaintiff should have taken out obstructionist notice then what would have happened is that an enquiry would have been made at the time of the hearing the obstructionist notice to find out whether the decree as passed by the High Court could not be executed. Since no obstructionist notice was taken out that enquiry could not be made under Order 21, Rule 98. But no prejudice could be said to have been caused to the appellant because what could not be done under Order 21, Rule 98 in an obstructionist notice could also be done when the appellant took out notice of motion under Order 21, Rule 99. When one proceeds under Order 21, Rule 99 it is the duty of the trial Judge to make the same sort of enquiry and if he was satisfied that the decree could not have been executed he could have set aside the execution. It is pertinent to note here that with a view to satisfy his conscience the learned trial Judge called upon the appellant to produce the evidence before him or show any document as to how and why the decree as passed by the High Court was not executable. But for the reasons best known to the appellant or for whatever reasons, he did not show any document to the learned trail Judge except pointing out the ex parte order passed by the Small Causes Court in Declaratory Suit which he had filed against the defendant who was not interested in the litigation at that stage. If in the proceedings before the learned trial Judge under Order 21, Rule 99 the appellant was to adduce satisfactory evidence so as to satisfy the conscience of the learned trial Judge it was quite possible that the learned trail Judge would not have passed the impugned order or would have passed an order the other way round perhaps in favour of the appellant. Once the appellant having failed to adduce satisfactory evidence before the learned trial Judge, he cannot now make grievance as to why obstructionist notice was not taken out I would even go step further and say that what the learned trial Judge could have done, could also have been done by me if satisfactory evidence was brought before me that the appellant could not have been dispossessed.
7. Regard being had to all these circumstances and facts obtaining in this case I find no infirmity in the impugned order passed by the learned trial Judge. The appeal is thus without merits and deserves to be dismissed. It stands dismissed accordingly. No order as to costs.