Mitter Ag., C.J.
1. One Bonomali De had let out an open piece of land to one Surendra Kumar Bagehi, who was a monthly tenant in respect thereto. Surendra Kumar Bagchi built a bustee on the said land and sublet a portion of the bustee, that is to say, some huts to the appellant before us Messrs. Jaminikanto Harendra Lal. Saha, who wore also monthly tenants in respect of the huts so let out to them. Bonomali De served a notice to quit on his tenant Surendra Kumar Bagchi and thereafter instituted a suit for ejectment against him. During the pendency of the suit Surendra Kumar Bagchi died and his widow Profulla Nalini Debi was substituted in his place. The suit for ejectment was decreed on 9th January 1942, before the Calcutta House Rent Control Order had been promulgated, The Calcutta House Rent Control Order was promulgated in 1943 and came into force on 26th June 1943. On the application for execution made by Bonomali De an order directing delivery of possession in terms of Order 21, It 35 (1), Civil P.C., was made on 17th May 1946. On 20th June 1946, Messrs. Jaminikanto Harendralal Saba, the sub-tenants, made this application under Section 17, Civil P.C., objecting to the delivery of vacant possession to the decree-holder Bonomali De. Two points were raised before our learned brother Latifur Rahman J.: (i) whether the applicant had locus standi to apply under Section 47, Civil P.C., and (2) whether they could resist the execution of the decree, in the manner ordered. Our learned brother Latifur Rahman J. decided both these points against the applicants. He held that they wore not the representatives of the judgment-debtor, Profulla Nalini Debi, and that they having derived title from Surendra Kumar Bagchi, the tenant, cannot claim any protection from eviction. The application of Messrs Jamini-kanto Harendralal Saha was accordingly dismissed, by the order passed by our learned brother Latifur Rahman J. on 11th July 1946. Against this order Messrs, Jaminikanto Harendralal Saha have preferred this appeal before us.
2. We cannot agree with our learned brother Latifur Rahman J. on the first point, The decree for ejectment was passed against the tenant Profulla Nalini Debi. Any sub-tenant would be bound by that decree and so that decree directing delivery of possession to the landlord Bonomali De binds the sub tenants Messrs. Jaminikanto Harendralal Saha. They are persons who have derived their interests from the tenant Surendra Kumar Bagchi. They are accordingly the representatives of the judgment-debtor in view of what has been laid down by the Pull Bench in Ishan Chunder Sirkar v. Beni Madhub (1900) 24 Cal. 62 (F.B.).
3. The second point is the real point for consideration before us. We have to decide the point before us in the light of the provisions of the Calcutta Rent Ordinance, 1946 (Bengal Ordinance No. 5 of 1946) in view of the provisions of Section 26 of that Ordinance. The relevant provisions of that Ordinance are Sections 17 and 12. these sections correspond respectively to Sections 11 and 9 of the Calcutta House Rent Control Order, 1943, except in one respect, namely, that there is a new proviso (proviso (b)) to Section 12 of the Ordinance which is not to be found in the proviso to Section 9 of the Calcutta House Rent Control Order, 1943. That proviso deals with the case where the property has been sub-let. In all other respects the relevant provisions of the Calcutta Rent Ordinance, 1946, are similar. It would, therefore, make no difference if we make reference to the Calcutta House Rent Control Order of 1943 instead of the provisions contained in the Calcutta Rent Ordinance of 1946.
4. We have already stated that the decree for ejectment was passed before the Calcutta House Rent Control Order came into operation. The rights of the parties will therefore have to be determined in terms of Section 11 of that Order. The phrase 'order for recovery of possession' in that section does not mean 'order directing delivery of possession made by the Court in execution of a decree for possession': Nanda Lal Roy v. Suresh Chandra Sen 33 AI.R. 1946 Cal. 133 The relevant portions of that section would, accordingly, run as follows:
Where any... decree for the recovery of possession of any house has been made but the possession of such house has not been recovered before the date of the commencement of this order by the execution of such... decree, the Court by which... the decree was made may, if it is of opinion that the...decree would not have been made if this order had been in operation at the date of the making of the... decree, rescind or vary the... decree in such manner as the Court may think fit for the purpose of giving effect to the provisions of this order.
The position, therefore, is this: could the decree for possession be passed on the date on which it was passed, namely, 9th January 1942, if the Calcutta House Rent Control Order was in force on that date? For the purposes of deciding this question we will have to refer to the provisions of Section 9 of that Order. That section prevents a land-lord from getting a decree for recovery of possession of any house from his tenant except in three classes of cases which are provided for in provisos (a), (b) and (c) to that section. It is admitted before us that none of these provisos (a), (b) and (c) applies to this case, Therefore, the position is this: Whether in view of the main enactment as contained in Section 9 of the Calcutta House Rent Control Order the decree, which has been passed in this suit, namely, a decree obtained by the landlord Bonomali De against his tenant Profulla Nalini Debi, could have been passed if the Calcutta House Rent Control Order had been in force on the date on which the decree was actually passed? Section 9 speaks of a decree for the recovery of possession of any house and the word 'house' has bean defined in Section 2, Sub-section (3) in a manner which would include a hut. But the suit which had been filed by Bonomali De against his tenant was not a suit for the recovery of a house even in that extended sense, but of bare land because he had let out bare land. The main enactment contained in Section 9 is therefore out of the way. This ground alone is sufficient for the purposes of this appeal. But we may indicate our views on Section 11. That section proceeds on the well known principle that an exeeuting Court must execute the decree as it stands. It cannot go behind the decree or vary the decree or refuse to execute it if the application for execution is not barred by time or if the case does not fall within the exceptions made by the Pull Bench in Gora Chand Haldar v. Prafulla Kumar Roy : AIR1925Cal907 Walmsley J. in delivering the judgment of the Pull Bench of five learned Judges made the following observations:
It would be tedious to examine the numerous decisions in detail, and it would not lead to any useful result. I think it may be said that the correct view, and the view for which there is a strong current of autherity, is that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make, the decree, the exeeuting Court is entitled to refuse to execute it on the ground that it was made witheut jurisdiction. Within these narrow limits I think that the executing Court is autherised to question the validity of a decree.
That section, namely Section 11 of the Calcutta House Rent Control Order, therefore, gives the power not to the executing Court but to the Court which had passed the decree to rescind or modify the decree if the decree could not have been passed in that form or could not have been passed at all at the date when it was passed if the Calcutta House Rent Control Order had been in force on the date of the decree. The application made by Messrs. Jamini Kanta Harendralal Saha under Section 47, Civil P.C., is accordingly a misconceived one.
5. It is a doubtful point as to whether a person, who is not a party to a suit and who cannot claim to be a necessary party to the suit as in the case of a sub-tenant, can move the Court which had passed the decree for the purposes of varying the decree. We need not pursue this point further, because no such application was made to the Court which passed the decree. The objection was raised before the executing Court by a person who was not a party to the suit, but who is the representative of the judgment-debtor for the purpose of execution; and as the case does not come within the exceptions laid down by the Pull Bench decision to which we have made a reference-a decision which was tacitly approved by the Judicial Committee in Jnanenclra Mohan Bhaduri v. Rabeendra Nath the executing Court was right in executing the decree as it stood, namely, by giving vacant possession to the decree-holder. Clause (b) of Section 12 of the Calcutta Rent Ordinance of 1946 would have created an additional obstacle to the appellant even if the decree for possession was in respect of a house.
6. For these reasons we dismiss this appeal with costs. On the oral application of the appellants we stay delivery of possession for three months from this date.
7. I agree.