(1) This is a plaintiff's appeal directed against the judgment of the Subordinate Judge, Srikakulam who reversed the decree passed in favour of the Plaintiff by the District Munsif Parvathipuram in O. S. No. 59 of 1957. The suit was laid under Order XXI, R. 103 C. P. C. The suit building was validly leased to the plaintiff more than 25 years ago by the Judgment-debtor in O. S. No. 61 of 1952 of the Sub-Court, Srikakulam. That suit was for recovery of a sum of money. In execution of the decree therein the decree-holder attached and brought to court-sale the right, title and interest of the judgment-debtor in the building in question. The respondent is the successful purchaser at the court auction. On the strength of this purchase at court-sale he duly obtained a sale certificate he applied for delivery of actual possession of the suit building. Actual delivery was resisted by the present plaintiff, who claimed to be in valid possession of the building in his own independent right as lessee under a lease granted to him about 25 years ago. This led the auction-purchaser-defendant to move the executing court under O. XXI, R. 97 for removal of obstruction. In spite of the opposition of the present plaintiff, the Court directed delivery of actual possession of the suit building to the auction-purchaser-defendant.
The plaintiff therefore instituted the suit out of which this second appeal arises. His case was that his right and interest as a lessee validly in possession of the suit property was not affected by the execution sale and that therefore the auction-purchaser was not entitled to dispossess him. According to him all that the auction purchaser could get was symbolical delivery of possession as contemplated by O. XXI, R. 96. The defendant-auction purchaser set up several pleas in defence, the most important of which was that the suit was not maintainable under S. 47 of the Code of Civil Procedure. The trial Court overruled this objection as to the maintainability of the suit and gave judgment for plaintiff. On appeal the Subordinate Judge, Srikakulam reversed the decision of the trial Court, holding that a suit was not maintainable and that the plaintiff's remedy was to seek to work out of his rights by making an appropriate application under S. 47 C. P. C. In this view, the learned Subordinate Judge dismissed the plaintiff's suit. It is against this decision that the plaintiff has come up in second appeal to this Court.
(2) The short question for decision in this Second appeal is whether the plaintiff -appellant falls within the mischief of S. 47 C. P. C. It cannot be disputed that the preponderance of view of the Madras High Court, which is binding on this Court, is that proceedings regarding delivery of possession to a stranger auction-purchaser relate to execution, discharge and satisfaction of the decree within the meaning of S. 47 C. P. C. , vide : Veyindramuthu Pillai v. Maya Nadan, ILR 43 Mad 107 : ( AIR 1920 Mad Mad 324) (FB) ; Krishna Aiyar v. Subramania Aiyar, (1939) 1 Mad LJ 468 : ( AIR 1939 Mad 369) (FB) and Annamalai Mudali v. Ramasami Mudali, ILR 1941 Mad 438 : AIR 1941 Mad 161 (FB). No doubt this view has not been shared by some High Courts. But this Court cannot depart from what has long been regarded by the High Court of undivided Madras as settled cursus curiae. The plaintiff -appellant cannot therefore successfully challenge the decision of the Court below on the ground that a question concerning delivery to the auction purchaser of the property obtained by him under a sale certificate is not a matter relating to execution, discharge or satisfaction of the decree. But this alone is not sufficient to bring the plaintiff within the purview of S. 47 C. P. C. It has to be shown further that he is the representative of the judgment-debtor. The old controversy as to whether a stranger auction-purchaser represents the decree-holder or the judgment-debtor is now only of academic interest, in view of the amended explanation to S. 47 C. P. C. This explanation however in no way affects the requirement that the plaintiff, in a case like the present one, has to be shown to be the representative of the judgment-debtor the execution of the money decree against whom led to the auction sale and purchase by the defendant .
(3) The contention on behalf of the appellant is that he cannot be regarded as a representative of the judgment-debtor in O. S. No. 61 of 1952 already adverted to. But the learned counsel for the respondent strenuously argued that the plaintiff being a lessee of the Judgment-debtor is his representative. This controversy takes us to a consideration as to whether the plaintiff can be regarded as the representative of the judgment-debtor.
(4) Both sides have not been able to place any direct decision on this point. Therefore it is necessary to proceed on first principles. Here is a case where before the institution of the suit, not to speak of the passing of the decree or the attachment in execution thereof, the plaintiff had acquired right to possession and enjoyment of the suit property under a valid lease granted to him by the judgment-debtor. The decree in O. S. No. 61 of 1952, as I already said, was only a money decree. In execution of that decree the right title and interest of the judgment-debtor, namely, the plaintiff's lessor was attached. The first question is whether the attachment embraced the rights of the plaintiff as lessee. To my mind the answer has clearly to be in the negative. I find it extremely difficult to agree that a lease is not a transfer of interest in immovable property . It has been held by a Full Bench in Kandaswami Pillai v. Ramasami Mannadi, ILR 42 Mad 203 : (AIR 1919 Mad 168) that 'a lease is an executed contract; it is a transfer of property or of an interest in property .' In Ragoonathdas Gopaldas v. Morarji Jutha, ILR 16 Bom 568 it was pointed out that a lease is not a mere contract but it is a conveyance and effects transfer of property. The position was reiterated in the following words by a Division Bench of the Bombay High Court in Ramachandra v. Subraya, : AIR1951Bom127 .
' ........................ merely because a lease of an immovable property is defined as a transfer of a right to enjoy such property in S. 105, T. P. Act it does not follow that it is not a transfer of immovable property within the meaning of S. 53A, T. P. Act.'
This view is amply supported by the provisions of S. 108(j) T. P. Act that : -
'the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it ...............'
Again in S. 111 (d) and (e) of the same Act it is provided that :
'A lease of immovable property determines ....................................
(d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right ;
(e) by express surrender ; that is to say, in case the lessee yields up his interest under the lease, to the lessor, by mutual agreement between them.'
The treatment in the above provisions of the lessee's interest in the property as distinct and different from the lessor's interest in the property is significant. It is also well to note that a lessee has a separate alienable interest in the property . It cannot therefore be doubted that when the suit property was attached and brought to execution sale and purchased by the defendant the judgment-debtor represented only the lessor's interest in it and not the lessee's interest, that is to say, the interest which the plaintiff held in the suit property . It follows that the auction purchaser obtained only the interest of the lessor in the property and could not claim to take the lessee's interest. By seeking to obtain actual possession of the property which was held by the plaintiff under a lease, the defendant auction-purchaser was attempting to get for himself the right and interest which the lessee had. This he was not entitled to do for he was purchaser only of the lessor's interest. His possession in simple words was that of a transferee with right to ignore the lease and assume actual physical possession of the leasehold. He could recover possession from the lessee only by validly terminating the lease and evicting the lessee by due process of law. The transfer-lessor had no longer right than this and surely the transferee cannot claim any higher right.
(5) It has to be remembered that ownership of immovable property is a bundle of rights. Some of these rights the owner can, in accordance with law, transfer to another and thereby vest in the transferee a valid interest in immovable property which, so long as it subsists, he can assert and uphold against the transferor. This is true of a lessee vis-a-vis his lessor. By the grant of a lease two separate interests were carved out of the property . One is the lessee's interest and the other is the lessor's interest. By obtaining a transfer of the lessor's interests, it cannot be claimed that the lessee's interest also passed to the transferee.
(6) It seems quite an elementary proposition to say that a person who has already parted with a particular interest in immovable property cannot in law represent that interest which no longer resides in him. The judgment-debtor who had carved out and transferred a particular interest in the suit property, in favour of the plaintiff under a valid and subsisting lease cannot be held, by any process of reasoning, to have represented the plaintiff -lessee's interest also in the execution proceedings. Conversely, the lessee too cannot be deemed to represent the lessor's interest. These are two distinct and separate estates held by two different persons filling the two well-defined legal positions. Therefore, the contention that the owner of one estate becomes the representative of the other estate also, does not appear to me to be at all tenable.
(7) Dealing with the distinction between a private sale and an execution sale, the Judicial committee in Dinendronath v. Ramoomar Ghosh, 8 Ind Application 65 at p. 75 (PC) observed as follows :-
'In the former the price is fixed by the vendor and the purchaser alone; in the latter the sale must be made by public auction conducted by a public officer, of which notice must be given as directed by the Act, and at which the public are entitled to bid. Under the former the purchaser derives title through the vendor. Under the latter the purchaser, notwithstanding he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor and free from all alienations or encumbrances effected by him subsequently to the attachment of the property sold in execution.'
The words 'subsequently to the attachment of the property sold in execution' in the last sentence in the above passage are indeed very significant.
(8) In Ajodhya Roy v. Hardwar Roy, 9, Cal LJ : 2 Ind Cas 213 two tests were laid down to determine whether a particular person is a representative of a party. They are :
'first, whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has, by act of parties or by operation of law, vested in the person who is sought to be treated as a representative, and secondly, if there has been a devolution of interest, whether so far as such interest is concerned, that person is bound by the decree.'
The decision has been followed by a Division Bench of the Calcutta High Court in Satyanarayan Banerji v. Kalyani Prasad, AIR 1945 Cal 387. In applying the test laid down in the above case to the facts of the present case one has to see whether subsequent to the attachment in execution there was any transmission of the interest of the judgment-debtor in the property to the plaintiff and if so whether the plaintiff was bound by the attachment and the execution sale which followed it. It is common ground in the present case that the plaintiff did not acquire any right or interest in the suit property subsequent to attachment. he obtained his tenancy right long before the attachment and he holds no other right. There is no question therefore of any interest of the judgment-debtor having devolved on him after the attachment.
It is equally obvious that what did not belong to the judgment-debtor could not be attached and sold. It is not the case of defendant-respondent that he purported to purchase anything more or other than what the judgment debtor had. Indeed, nothing except the judgment debtor's right, title and interest in the suit building passed to him under the sale certificate. It is therefore well nigh impossible to hold that the plaintiff is the representative of the judgment-debtor in O. S. No. 61 of 1952. Even if the expression 'representative' is given wide connotation and it is accepted that representative is a person who just steps into the shoes of another person or claims any right or advantage from or under that person, it cannot avail the auction-purchaser in the instant case. The plaintiff in the present case does not stand in the shoes of the judgment-debtor in O. S. 61 of 1952 nor does he claim any right or benefit on account of any act or circumstances which took place subsequent to the attachment of the property in execution of the decree, in O. S. No. 61 of 1952.
(9) In (1939) 1 Mad LJ 468 : (AIR 1939 Mad 369 (FB) Leach, C. J. delivering the opinion of a Full Bench of the Madras High Court observed :
'As I have already pointed out, the appellant's case is based on the assumption that Sankaranarayana Aiyar got possession of the property in 1919 as the assignee of the tenancy. It is common ground that a suit for possession will lie if this was the position, as a tenant cannot be regarded as a representative within the meaning of Sec. 47 whereas in this case, the tenancy had commenced before the attachment.'
(10) The learned counsel for the respondent auction-purchaser had placed strong reliance on the decision of a single judge in Apparao v. Venkappa, AIR 1931, Mad 534. But this decision does not seem to be of any real assistance to him. The suit there was one for possession of certain lands and a decree for possession was obtained by the plaintiff. When he sought to recover possession in execution, he was resisted by 'the defendant and men belonging to the defendant'. In dealing with this aspect justice Ramesam stated as follows :
'Who are these men belonging to the defendant? They must be either farm servants of defendant or tenants of the defendant. In either case unless they are occupancy tenants they are bound by the decree : See Jafferji Ibrahimji v. Miyadin Mangal, ILR 46 Bom 526 : AIR 1922 Bom 273 : 64 Ind Cas 692 and Jairam Jadowji v. Nowroji Jamshedji, AIR 1922 Bom 449 (2) : 65 Ind Cas 212 which I prefer to Ezra v. Gubbay, ILR 47 Cal 907 : 60 Ind Cas 969 : (AIR 1820 Cal 706) which is also distinguishable. Otherwise they would not be described as men belonging to the defendant.'
There is nothing in this decision to show that the persons described as men belonging to the defendant were really the lessees of the defendant; much less is there to show that the leases, if any favour were granted before the institutions of the suit for possession of the property. Furthermore, the two decisions of the Bombay High Court relied upon by the learned judge related to decree in ejectment obtained by the lessors against the lessees during the execution of which resistance was offered by the sub-tenants of the lessees. Reliance upon these decisions, therefore shows, if anything, that the learned Judge in AIR 1931 Mad 534 regarded the persons who offered obstruction to delivery of possession in execution of the decree in that case as occupying the position of sub-tenants holding under the judgment-debtor-tenant against whom a decree in ejectment has been passed.
The position of the plaintiff in the instant case is radically different. However, the learned counsel for the respondent contends that if an under-tenant who is not a party to the ejectment suit can be dispossessed in execution of the decree for possession obtained by the head-lessor against the under lessor, the plaintiff in the instant case can also equally well be dispossessed of his leasehold. This argument overlooks the true legal position of a sub-lessee. A sub-lessee's rights will terminate with termination of the lessee's rights. sub-tenancy is a subordinate interest carved out by the tenant and cannot ordinarily outlive the tenancy. It is will come to an end when the tenancy to which it is subordinate determines, except in a case of fraud or collusion between the lessor and the lessee as against the sub-lessee or a case of surrender by the lessee to the lessor behind the back of the sub-lessee and an attempt thereby to derogate from the grant made by the lessee to the sub-lessee. It has therefore been held that in a case where a decree for eviction of the tenant is obtained on a valid and bona fide termination of the tenancy, the sub-tenancy cannot survive that decree and the sub-tenant cannot resist delivery of possession to the decree-holder-landlord, in execution of the ejectment decree. The sub-tenant in such case has been held to be a person bound by the decree within the meaning of O. 21, R. 35.
This aspect of the matter has been elaborately considered by a Division Bench of the Calcutta High Court in Sailendra Nath v. Bijan Lal, AIR 1945 Cal 283 where the position is stated thus at pp. 291 and 292:
'To make a man privy to an action he must have acquired an interest in the subject-matter of the action by inheritance, succession or purchase from a party subsequent to the action or he must hold the property subordinately (vide Bigella on Estoppel, Edn. 6, pp. 158 and 159). Thus, a man cannot be privy to a judgment by succession unless he has acquired the property to which the judgment relates by way of inheritance, purchase etc., subsequent to the institution of the suit. Nobody, can represent an interest which he has already parted with and consequently a transferee prior to the institution of the suit cannot be privy to or bound by a judgment obtained against the transferor, but the position may be different in the case of the subordinate holder, e.g., when a sub-lease holds under a lessee. If the interest of the subordinate holder is of such a character that it is entirely dependent on that of the superior holder and automatically comes to an end as soon as the superior interest is extinguished, the subordinate holder would be a privy to the judgment obtained against the superior holder even though he was not a party to the action. If the interest of the lessee therefore, is determined in such a way that the interest of the sub-lessee is extinguished along with it, a lawful judgment against the lessee which gives effect to the determination of the lessee's fights must of necessity extinguish the subordinate rights of the under-tenant. In such cases, it is immaterial whether the interest of the under-tenant began before or after the suit. In our opinion, therefore, a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee if the eviction is based upon a ground which determines the under-lease also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree for possession proceeds on a ground which does not by itself annul the sub-lease the decree would not be binding on the sub-lessee, nor could the sub-lessee be evicted in execution of the decree if he had acquired a statutory right or protection, e.g., under the Bengal Tenancy Act which he could assert against the lessor. Within these limits, we think a sub-lessee could be held to be bound by a decree obtained against his lessor and when he is so bound he can undoubtedly be ousted in execution of the decree obtained against his lessor under O. 21, R. 21, R. 35, Civil P. C. , though he was not made a party to the suit itself.'
This passage certainly supports the plaintiff -appellant before me. He has also obtained certain valuable rights under the Madras Buildings (Lease and Rent Control) Act which has thrown a solid ring of statutory protection around tenants of residential and non-residential buildings to save him from eviction in certain circumstances . This is an added reason for holding that the plaintiff cannot be dispossessed on the ground that he is a representative of the judgment-debtor-lessor.
(11) In view of the foregoing, the decision of the Court below that the plaintiff is a representative of the judgment-debtor and therefore falls within the mischief of Sec. 47 C. P. C. cannot be sustained. The decision of the Court below is set aside and the appeal is allowed, with costs here and in the lower appellate Court for being dealt with on the merits according to law. The facts which were conceded by either side before the lower appellate Court at the previous hearing of the appeal by it will not be allowed to be reopened when it hears the appeal again after remand. Court fee paid on the memorandum of second appeal will be refunded to the appellant. No leave.
(12) Appeal allowed.