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D.E.D.J. Ezra Vs. J.E. Gubbay - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.969
AppellantD.E.D.J. Ezra
RespondentJ.E. Gubbay
Cases ReferredMancharam v. Fakirchmd
Excerpt:
civil procedure code (act v of 1908),order xxi, rules 97, 99 - decree for possession--decree-holder resisted in obtaining possession--sub-tenant of judgment-debtor, claiming possession--decree-holder, remedy of. - .....the time of the trial.8. now, in my opinion, rule 101, which deals, with exactly the same class of person as rule 99, but deals with that class after and not before dispossession by the sheriff, shows that the latter meaning of the words in rule 99 is the correct' one. the court has only to be satisfied that the respondent was in possession on her own account and it will restore her even after dispossession.9. the only question which remains, so far as i can see, is whether this construction must be abandoned on the ground that it gives no meaning to the final words of the first clause of rule 35. in view of rule 102, and of the fact that persons taking an interest pendente lite are persons 'bound by the decree', this objection falls to the ground. no doubt the draftsmanship of; the.....
Judgment:

Rankin, J.

1. This suit was instituted on the 7th July 1919 by lessor against lessee for recovery of possession of certain premises upon the determination of the term by forfeiture for breach of conditions in the lease. The suit was contested by the lessee unsuccessfully, and an order for recovery of possession was made on 8th December 1919, by which the lessee was given until the 29th February 1920, to make over possession, This not being done, an order, dated 12th March 1920, was obtained by the lessor directing the Sheriff to put him into possession, The Sheriff, on the 8sh April 1920, was obstructed in the execution of this order by a Mrs. Wallace who is respondent to the present application made by the lessor before me as the Judge in Clambers.

2. Mr. Pugh, who appears for Mrs. Wallace, admits that his alien, holds as a tenant under the defendant in the suit. He does not file any affidavit on her behalf; but he says that she was in possession as under tenant before the suit was instituted and he indicates a desire to contend, or at least a willingness to allege, (on what grounds I do not know) that the suit was collusive. Mr. Avetoom, for the lessor, contends that, though not a party to the snit, Mrs, Wallace is bound by the decree whether her tenancy began before or after action brought, that she is in law a privy though not a party, and her under-tenancy has determined by the forfeiture of the lease.

3. It is not absolutely necessary to join as defendants all persons in possession: in some circumstances it may be wrong and oppressive so to do: Geen v. Herring (1905) 1K.B. 152 : 74 L.J.K.B. 62 : 92 L.T. 37 : 53 W.R. 326 : 21 T.L.R. 93, The risk taken by omitting to join any such person is the risk that after decree he may set up a right to possession, independently of the lease which has become forfeited, whether by equity against the lessor or by other adverse title. This, however, is the extent of the risk and, apart from the Code, I should have 'no difficulty in enforcing this decree against Mrs, Wallace, her estate or interest having some to an end with the forfeiture of the lease Minet v. Johnson (1891) 63 L.T. 507 and there being no title of evidence before me as to the action having been Collusive.

4. There is nothing, however, in the least paradoxical in the suggestion that, in order to get an effective right to actual possession through the Sheriff, a plaintiff must make all persons defendants who were in possession at the date of his suit. This used to be the law in England, and there may well be special reasons in favour of insisting on this rule in India. I have to see what the Code provides.

5. Mr. Pugh's first point is, that the respondent comes within Rule 36 of Order XXT and that the plaintiff has wrongly obtained the order of 12th Marsh 1920 under Rule 35. I do not think there is anything, wrong with the order. The rules in question are simply directed to the form of possession which the Court will give to a plaintiff. The rights established by any decree are established inter partes and are always liable to be denied by strangers claming an interest; but if the plaintiff has obtained a decree on the footing of which he is entitled to actual possession and not merely to the form of possession appropriate to a reversion expcetant upon another's occupancy right, an order made under Rule 35 is not bad or void. The question is simply whether that order can be enforced against the person objecting to its operation. The answer to this question must, I think, be given as far as any, summary procedure is concerned, by looking first to Rules 97, 98 and 99 of the same order. Rule 98 deals with two cases, viz., where the obstruction is occasioned without just Cause (1) by the judgment, debtor, (2) by some other person at his instigation. Rule 99 likewise deals with two cases, of, claimants in good faith: persons claiming on their own account, (2) persons claiming on account of, some person other than the judgment-debtor.

6. Now, 1 am certainly not satisfied that the respondent was acting at the instigation of the lessee defendant latest whom the decree was passed. I cannot, therefore, act under Rule 98.

7. As regards Rule 99, if 'claiming in good faith to be in possession' means claiming in good faith to have a right to be in possession,' I am not satisfied in the least of the respondent's good faith. In the absence of any affidavit by her, and knowing that the holds under the lessee, I think the suggestion that the suit was collusive points rather to bad faith than good. If, however, the words cited are satisfied by her being able to say truly that she is in possession as a matter of fact, I have no doubt of this nor is contested; it is indeed admitted that she, was in possession is an under-tenant in December 1919 at the time of the trial.

8. Now, in my opinion, Rule 101, which deals, with exactly the same class of person as Rule 99, but deals with that class after and not before dispossession by the Sheriff, shows that the latter meaning of the words in Rule 99 is the correct' one. The Court has only to be satisfied that the respondent was in possession on her own account and it will restore her even after dispossession.

9. The only question which remains, so far as I can see, is whether this construction must be abandoned on the ground that it gives no meaning to the final words of the first clause of Rule 35. In view of Rule 102, and of the fact that persons taking an interest pendente lite are persons 'bound by the decree', this objection falls to the ground. No doubt the draftsmanship of; the Order is defective even as regards them, for such persons are not necessarily within Rule 98 since they cannot always act at the instigation of the 'judgment-debtor'. This trouble, however, does not arise at present.

10. The result is that, in my view, an action for possession based upon forfeiture of a term should, for practical reasons, be brought against all persons in possession including constructive possession, which seems to be covered by Rule 99, Mancharam v. Fakirchmd, 25 B. 475 : 3 Bom. L.R. 58, at the date of the suit: not that the suit is necessarily defective otherwise, but because the decree will be difficult to enforce under the Court.

11. Unless, therefore, Mr. Avetoom, desires to contend that the respondent's tenancy began after the suit was instituted, I must make an order under Rule 99 dismissing the plaintiff's application, and must leave him to his remedy by a suit against the respondent. Mr. Avetoom disclaiming this desire, I make the order under Rule 99 with costs.


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