1. This Rule is directed against an order made by the 4th Subordinate Judge, Alipur, in Miscellaneous Judicial Case No. 40 of 1957 arising out of Execution Case No 17 of 1957 of that court. The order is one under Order XXI, Rule 98 of the Civil Procedure Code and the petitioner before us is the objector. The facts which are material for the purposes of this Rule may be briefly stated as follows:
2. On 25-3-1954, opposite party No. 1, Sreemati Renuka Debi obtained a compromise decree for ejectment against three persons named Gobardhan Das Barma who was a tenant of the first degree, Protap Chandra Mitter and B. R. Sarma who were sub-tenants under Gobardhan Das Barma. Under the terms of the compromise the persons against whom the decree was obtained were to vacate the premises on or before the 30th of April, 1954. The subject-matter of dispute is the entire first floor of premises No. 24A Mohini Mohan Road excepting one room. It appears that the decree-holder applied for execution of the decree on four previous occasions and on some occasions she was resisted by the present petitioner P. N. Pathak Sarma. In one of the execution cases opposite party No. 1 was directed to file an application under Order XXI, Rule 97 of the Code of Civil Procedure but she did not choose to do that and allowed the execution case to be struck off. The execution case out of which the present proceeding arises- was started by the decree-holder opposite party No. 1 on 29-4-1957. In this execution case the petitioner filed an application on 14-5-1957, purporting to be under Section 151 and Order XXI, Rule 97 of the Code of Civil Procedure for a direction that he was in possession of the premises as a tenant in his own right for several years and that the decree-holder should have proceeded first under Order XXI, Rule 97 of the Code before proceeding further with execution. He made a further prayer for a direction that the decree-holder be given such possession as the property v/as capable of and also for a direction upon the decree-holder not to disturb the possession of the petitioner in respect of the portion of the premises which was in his occupation. This application was heard by the executing court on 21-5-1957. In the meantime the decree-holder had applied for issue of a writ of delivery of possession. On hearing the respective cases of the parties the executing court after recounting the previous history of the case came to the conclusion that in view of the previous conduct of the petitioner P. N. Pathak Sarma it was not necessary to issue a writ of delivery of possession and came to the following finding:
'The present petition in my opinion virtually amounts to a resistance to the decree-holder for obtaining possession of the premises claimed to be in the possession of the applicant. It would be merely piling unreason upon technicality to ignore the entire past and allow the writ for delivery of possession to be issued on the facile plea that the decree-holder should meet with a resistance in order to be able to apply under Order 21, Rule 97 of the Code of Civil Procedure when in point of fact there has been such resistance on every occasion in the past and when there has been a virtual resistance again by the present applicant upon his application dated 14-5-1947.'
Upon this finding the executing court directed the decree-holder to file an application under Order XXI, Rule 97 of the Code of Civil Procedure. This order was made by the executing court on 28-5-1957, and on the same date opposite party No. 1 acting upon the aforesaid order filed her application under Order XXI, Rule 97 of the Code complaining of resistance to possession in execution of the decree. Upon this application of the opposite party No. 1 the executing court made an order in favour of the decree-holder on 1-2-1958.
3. Two objections were raised by the petitioner to the application filed by the opposite party No. 1. The first one was to the effect that the application under Order XXI, Rule 97 was barred by limitation and the second was to the effect that the petitioner was entitled to be in possession in his own right. Both these objections were overruled by the learned Subordinate Judge and against that order the petitioner has obtained this Rule.
4. Mr. Ghose appearing in support of the Rule has raised three principal points before us. In the first place he has argued that an application under Order XXI, Rule 97 is not maintainable in the absence of resistance or obstruction to delivery of possession in pursuance of a writ of possession issued by the Court and the Court acted without jurisdiction in entertaining the application under Order XXI, Rule 97 in the absence of any resistance offered by the petitioner to possession in pursuance of a writ.
5. There are three answers to this point raised by Mr. Ghose. The first one is that the order made by the court on the 28th of May upon the petitioner's application is binding between the parties and by that order the court held that the application filed by the petitioner on the 14th of May, 1957, constituted resistance or obstruction to delivery of possession and therefore it was not necessary for the decree-holder to take out a writ for delivery of possession to invite a fresh resistance by the petitioner. This finding was arrived at in view of the past conduct of the petitioner in previous execution cases. The decrees-holder opposite party No. 1 evidently acted upon the finding, and filed her application under Order XXI, Rule 97 on the same date which gave rise to Miscellaneous Judicial Case No. 40 of 1957.
6. Mr. Ghose has contended that the order passed by the court upon the application filed by the petitioner is without jurisdiction and can be challenged as an interlocutory order in the present revision case which is directed against the order dated 1-2-1958. It is impossible to accept this contention. An interlocutory order is an order which is passed by the court after the commencement of a proceeding or suit. In the present case the order of the court dated 28-5-1957, is not an order passed after the commencement of the present proceeding but before the date of its commencement. Therefore, it cannot be said to be an interlocutary order and cannot be collaterally challenged in a revision petition against a subsequent order. Upon the finding arrived at by the court by its order dated 28-5-1957, the application filed by the petitioner on 14-5-1957, constitutes resistance to possession within the meaning of Order XXI, Rule 97 so as to entitle the decree-holder to apply under that rule.
7. The second answer to the point raised by Mr. Ghose is that this point was not raised by the petitioner in the petition of objection in the executing court and has not even been taken specifically in the grounds of the petition of motion upon which this Rule has been issued. Mr. Ghose has relied upon the decision of this Court in the case of Kiron Soshi Dasi v. Official Assignee of Calcutta, 36 Cal WN 965: (AIR 1933 Cal 246), where Rankin C.J. and Costello J., held that Order XXI, Rule 97 of the Code of Civil Procedure applies only when the applicant having obtained a general order to all whom it may concern for delivery of possession under Rule 95 or Rule 96 through a court officer is obstructed or resisted in execution thereof and that this provision does not apply to a case where the decree-holder has been obstructed in attempts he himself made to go upon the land without an order from the court for delivery of possession under Rule 95 or Rule 96. In other words, according to this decision a decree-holder is not entitled to apply under Order XXI, Rule 97 unless he is armed with the authority of the court to take possession. In the case before us, however, in view of the past conduct of the petitioner in previous execution case the court specifically came to the conclusion that it was not necessary for the decree-holder to take out a writ for delivery of possession to invite a fresh resistance to delivery of possession and the court thought that the application filed by the petitioner on the 14th of May, 1957, was sufficient to attract the operations of Order XXI, Rule 97. In our opinion, this decision of the court cannot be said to be erroneous or contrary to the principle enunciated by Rankin C. J. and Costello J., in the case referred to above. If the judgment-debtor has offered resistance on several occasions in the past to delivery of possession which was not the case before their Lordships in the reported case, it may not be necessary for the decree-holder to take out a fresh writ for delivery of possession to invite a fresh resistance or obstruction to possession. Accordingly, apart from the preliminary difficulties which lie in the way of acceptance of Mr. Ghose's first point, we are satisfied that on the merits as well it is devoid of any substance. The first point raised by Mr. Ghose accordingly fails.
8. The second point argued in support of the Role is that the application of opposite party No. 1 under Order XXI, Rule 97 is barred by limitation because it was filed more than 30 days after the date of resistance or obstruction to possession within the meaning of Article 167 of the Indian Limitation Act. This point, though argued as an independent point, is in my opinion related to the first point raised by Mr. Ghose. Upon the finding of the Court in its order dated 28-5-1957, the last act of resistance or obstruction to delivery of possession by the petitioner took place on 14-5-1957, when the petitioner filed his application under S. 151 read with Order XXI, Rule 97. If that be so, the opposite party No. 1 filed her application on the 14th day after the last act of resistance or obstruction to delivery of possession. Numerous authorities have been cited before us to establish the proposition that the decree-holder must file the application under Order XXI, Rule 97 within 80 days from the last act of resistance or obstruction to delivery of possession. It is sufficient for the present purpose to cite only the last decision on this point of P. B. Mukherji J., with which we respectfully agree, in the case of Official Trustee of Bengal v. Manmatha Nath Sadhu Khan, : AIR1953Cal499 , in which his Lordship after reviewing all the cases bearing on the point came to the conclusion that an application under Order XXI, Rule 97 of the Code of Civil Procedure is not barred under Article 167 of the Limitation Act, if it is filed within 30 days from the particular resistance or obstruction complained of in such application and the fact that there was a previous resistance to a previous writ for possession by the same person and in the same capacity is wholly immaterial. We have examined the application filed by the decree-holder opposite party No. 1 in the present case. In paragraph 2 of that application the decree-holder opposite party No. 1 made the following allegations:
'One P. N. Pathak Sarma who claims to be in possession of the first floor, say, one room, entered appearance and objected to suit issue of writ of possession on the 14th May, 1957 and your Honour by order dated 28-5-1957, was pleased to hold that such objection amounts to offering resistance and obstruction within the meaning of Order XXI, Rule 97 and has directed your petitioner to seek for relief under that Rule.'
This paragraph makes it quite clear that the opposite party No. 1 in the present proceeding was complaining of resistance or obstruction to delivery of possession by the petitioner's application dated 14-5-1957. Consequently, the application under Order XXI, Rule 97 which was filed by opposite party No. 1 on 28-5-1957, is well within time. The second point argued in support of this Rule must therefore be overruled.
9. The third point argued by Mr. Ghose is to the effect that there is no specific finding by the executing court to the effect that the petitioner was offering resistance at the instigation of the judgment-debtor within the meaning of Order XXI, Rule 98 of the Code of Civil Procedure and consequently the order made by the Court under that rule is without jurisdiction. There is no substance in this contention. This point was not raised in the Court below by the petitioner either in his petition of objection nor was it agitated at the hearing before the executing court. The executing court has examined the respective cases of the petitioner and the decree-holder opposite party No. 1. According to the petitioner's case he was a sub-tenant under Gobardhan Das Barma who was a tenant of the first degree whereas, according to the case of the decree-holder opposite party the petitioner was merely a employee of B. R. Sarma who was one of the subtenants of Gobardhan Das Sarma and according to the terms and conditions of the petitioner's service he was to get free residential accommodation. After considering the respective cases of the parties the executing court has come to the conclusion that the petitioner has failed to prove that he was ever a sub-tenant under Gobardhan Das Sharma and the executing court has further found that the petitioner entered into the premises as the manager of a partnership firm of which B. R. Sarma was one of the partners and though the petitioner's service terminated in December, 1949, he was allowed to remain in occupation because he was a relation of B. R. Sarma. These are findings of fact and cannot be questioned in revision.
10. Upon these findings it seems to us to be clear that the petitioner was a licensee or a creature of B. R. Sarma who was one of the sub-tenants. Mr. Sen Gupta appearing for opposite party No. 1 cited before us the decision of the Supreme Court in the case of Importers and . v. Pheroze Framroze Taraporewala, : 4SCR226 . In that case Das J., as he then was observed as follows at p. 276 (of SCA): (at p. 75 of AIR):
'Under the ordinary law a decree for possession against a tenant in a suit for ejectment is binding on a person claiming title under or through the tenant and is executable against such person whether or not he was not a party to the suit.'
Upon the finding arrived at by the executing court the petitioner was claiming title through B. R. Sarma who was a subtenant under Gobardhan Das Barma. B. R. Sarma was a party to the ejectment suit but the petitioner was not but in view of the fact that the petitioner was let into possession by B. R. Sarma he is bound by the decree and the decree is executable against him even though he was not a party to the suit. The question whether the resistance offered by the petitioner to delivery of possession was at the instigation of B. R. Sarma or any one of the other parties who were parties to the suit was not raised before the executing court and we cannot allow the petitioner to raise that contention for the first time in revision.
11. If the story set up by the petitioner had been true, one would have expected him to enforce his remedies under the provisions of Section 13(2) of the West Bengal Premises Rent Control Act of 1950 but the petitioner took no steps under the provisions of that section.
12. For all these reasons we are not prepared to interfere with the order made by the learned Subordinate Judge and we would discharge this Rule with costs to opposite party No. 1.
13. I agree.