Nirendra Krishna Mitra, J.
1. The petitioner filed Title Suit No. 397 of 1983 in the 2nd Court of the learned Munsif at Alipore, 24-Parganas, against the original opposite party Nos. 1 and 2 for declaration and permanent injunction. The petitioner's case as made out in the plaint, inter alia, was that he was a sub-tenant in respect of one Shop room in premises No. 4/1, Wattagunj Street, now known as Kabithirtha Sarani, Calcutta, at a monthly rental of 11s. 90 per month inclusive of electricity charges under the opposite party No. 2 who was a tenant in respect of the said premises under the original opposite party No. 1. The petitioner's further case was that on the 21st September, 1964 the petitioner had entered into an agreement with the opposite party No. 2 by which the petitioner was inducted as a sub-tenant with effect from 1st September 1964 to which one Md. Ismail of Dr. Sudhir Bose Road, was one of the attesting witnesses. Thereafter such agreement was ratified by another indenture on 1st September, 1966 to which the said Md. Ismail and Md. AH, the Original opposite party No. 1 (since deceased) who was also the predecessor-in-interest of the opposite party Nos. 1(a) to 1(f) were the attesting witness. The opposite party No. 2 filed Title Suit No. 164 of 1981 against the petitioner for recovery of possession and also one Money Suit being Money Suit No. 50 of 1981 for realising arrears of amount payable treating the petitioner as a licensee but both the suits were dismissed by the trial court on the ground that the petitioner was not a licensee but a sub-tenant and the said findings were even affirmed, by the lower appellate court in Title Appeal No. 885 of 1981. Subsequently, the said Md. Ali brought a suit for ejectment against the opposite party No. 2 without impleading the petitioner as a party therein being Title Suit No. 545 of 1981 and obtained an ex-party decree from the 51th Court of the learned Munsif at Alipore and put the decree in to execution which gave rise to Title Execution Case No. 23 of 1983 and the decree-holder tried to take delivery of possession through police help. The petitioner's further contention was that since the landlord of the first decree had full knowledge and had given written consent in the matter of inducting the petitioner as a sub-tenant, possession of the disputed shop room could not be taken by the said landlord by virtue of the aforesaid ex-parte decree without impleading the petitioner in the aforesaid Title Suit No. 545 of 1981. In the petitioner's aforesaid Title Suit No. 397, of 1083 the petitioner obtained a temporary injunction which was however, subsequently set aside by the appellate court in Misc. Appeal No. 306 of 1985 and the revisional application moved by the petitioner against the said order of the lower appellate court ultimately was not pressed. Thereafter the opposite parties Nos. 1(a) to 1(f) filed Title Execution Case No. 12 of 1986 for getting possession of the disputed property, under order 21 Rule 35 of the Code of Civil Procedure and in the said title execution case the said opposite parties filed an application for police help under Section 151 of the Code of Civil Procedure which was allowed exparte by the executing court vide its order dated 1.3.86. The petitioner subsequently, filed an application for stay of the said title execution case and another application for disposing of the said application for police help determining all questions arising between the parties. In neither of the two aforesaid execution, cases the petitioner, however, was made a party and the opposite party No. 2 who was the judgment debtor, filed an application in the subsequent Title Execution Case No. 12 of 1986 stating inter alia, that he had no objection against the execution of the said ex-parte decree obtained against him. The executing court, however, by its order No. 14, dated 4.3.86 rejected both the applications of the petitioner and against the said rejection the petitioner has moved this court in revision and obtained the the present Civil Order.
2. Mr. Ghosal, learned Advocate appearing on behalf of the petitioner, however, has referred to the decision of the Supreme Court in the case of Giridhari Lal & Sons v. Balbir Nath Mathur and Ors., reported in : [1986]1SCR383 and submitted that since the landlord was a party to the indenture, dated 1st September, 1966 it should be presumed that the landlord had given his previous consent in writing to the creation of sub-tenancy of the petitioner by the opposite party No. 2 and as such the petitioner was not bound by the ex-parte decree obtained by the landlord against the opposite party No. 2 and he could not be evicted in course of execution of the said decree.
3. Mr. Mitter learned Advocate appearing on behalf of the opposite parties Nos. 1(a) to 1(f), however, has submitted that since the decree was obtained against lessee the sub-lessee was bound by the said decree under Order 21 Rule 35 of the Code of Civil Procedure and the application for police help under Section 151 of the said Code was also quite maintainable in law and referred to the decisions in the case of Sri Jagatguru Gurushiddaswami Guru Gandharswami Murusavirmath v. The Dakshina Maharasthra Digambar Jain Sabha, reported in : [1954]1SCR235 , Rupchand Gupta v. Raghu Vanshi (P) Ltd and Anr., reported in : [1964]7SCR760 , Saudamini Roy Chowdhury v. Satyendranath Sarkar reported in 85 C.W.N., 958, Sk. Yusuf v. Jatish Chandra Banerjee and Ors., reported in 35 C.W.N., 1132 Kanai Lal Das and Ors. v. Hari Sankar Dutta, reported in 86 C.W.N. 549, Pannalal Bag v. Santosh Kumar Sikdar, reported in 88 C.W.N., 504, and Sunil Kumar Dutta v. P.C. Chatterjee & Co. reported in 88 C.W.N., 702.
4. Having heard the learned Advocates and considering the impugned order and also the decisions cited at the bar, I am, however, of the view that the impugned order does not suffer from any material irregularity or error of jurisdiction on the part of the learned Munsif and as such I am not inclined to interfere with the same.
5. The decision reported in : [1964]7SCR760 however, is clearly distinguishable on, the facts of the present case. No doubt, it has been held therein that where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the' decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee but this is a position well understood by him when he took the sublease. The law allows this and so the omission cannot be said to be an improper act. None-the-less in that case the lease in question was one under the general law of the land, i.e., the Transfer of Property Act as it was for 75 years and obviously, the sub-lessee could not get more light than that of the lessee under the said lease or de horse the said lease.
6. The decision in : [1954]1SCR235 is also distinguishable on facts inasmuch as the lease which was the subject matter in the said suit was that of a permanent nature and not under any Rent Act and therefore, the proposition of law that was enunciated in the said case that the sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction was based on a ground which determines the sub-lease also cannot be applied to the facts of the present case. The decision in 85 C.W.N. 958 in which A. K. Janah, J (as His Lordship then was) had inter alia, held that an application under Section 151 of the Code of Civil Procedure for police help for implementation of the injunction order passed by the Civil Court was maintainable, also cannot be applied to the present case, in view of the fact, that the said case was not a case relating to any execution proceeding. The decisions reported in 88 C.W.N. 504 and 702 clearly stated the state of affairs under which the police help under Section 151 of the Code of Civil Procedure can be made.
7. In the decision reported in : AIR1959Cal613 , it has been clearly laid down that under the ordinary law, a decree for possession passed against a tenant in a suit for ejectment, is hiding on a person claiming title under or through the tenant and is executable against such person whether or not he was a party to the suit. In the case reported in 86 C.W.N. 549 the Division Bench of this Court has held clearly that where any sub-tenancy was created after the commencement of the West Bengal Premises Tenancy Act, 1956 and where the superior landlord had not given written consent to the creation of such sub-tenancy nor the alleged sub-tenant had given notice to the superior landlord as contemplated by Section 16 of the said Act, irresistable conclusion would be that the superior landlord was entitled to recover possession of the premises from his tenant under Section 13(1) (a) pf the said Act including the alleged sub-tenant.
8. In the decision reported in : [1986]1SCR383 although it has been clearly held that when an agreement- of the latter of the sub-tenancy in respect of the demised premises was attested by the landlord himself, there could be no doubt that the landlord had given his previous consent in the matter and had notice in writing of the sub-tenancy in respect of the particular premises and the sub-tenant cannot be evicted in execution of the decree obtained by the landlord against his tenant.
9. On a plain reading of the agreement dated 21st September, 1961 and the indenture dated 1st September, 1.966, however, it cannot be said that those two documents are documents of creation of any sub-tenancy in favour of the petitioner but merely an arrangement made between the parties to the said agreement for running the business in the disputed shop room and even if the superior landlord had signed the indenture as an attesting witness it cannot be said that the landlord had given his written consent to the creation of the alleged sub-tenancy and had notice of the same and the requirements of Section 14 and Section 16(1) of the West Bengal Premises Tenancy Act, 1956 had been fulfilled. The decree obtained by the opposite party No. 2 is, therefore, binding upon the alleged sub-tenant, i.e., the petitioner as per the decision in Kanai Lal Das & Ors. case (supra). The decision reported in : [1986]1SCR383 thus will be of no help to the petitioner.
10. Lastly, comes the decision reported in 35 C.W.N. 1132 where it has been clearly said by the Division Bench of this Court that when a landlord has obtained a decree for ejectment against his lessee, the sub-lessee under the letter, although not a party to the suit, is a person 'bound by the decree' within the meaning of Order 21 Rule 35 of the Code of Civil Procedure and as such is liable to be ejected in execution thereof without any proceeding under Order 21 Rule 97 of the said Code, unless he has some independent title. It makes no difference whether the tenancy is forfeited or terminated by notice to quit. Even when the sub-lessee has an independent title, he would be estopped under Section 116 of the Evidence Act from setting it up in execution proceeding against his lessor, if he has let into possession by the latter. In view of the said decision it cannot be held, therefore, as submitted by the petitioner, that without taking recourse to Order 21 Rule 97 of the Code of Civil Procedure the Court can not grant police help to the decree-holder under Section 151 of the Code of Civil Procedure on an application under Order 21 Rule 35 of the Code filed by the decree-holder. The order granting police help under Section 151 of the Code is an extra-ordinary mode or procedure to implement the execution of a decree. It is an aid to execution and not the execution itself. It is not by itself an application for possession nor it is an application under Order 21 Rule 97 of the Code of Civil Procedure. The very nature of the application for police help under Section 151 of the Code of Civil Procedure may be on an application under Order 21 Rule 35 of the said Code which is essentially different from an application under Order 21 Rule 97 of the said Code, and such an order can be made by the executing court on an application under Order 21 Rule 35 of the Code of Civil Procedure filed by the decree-holder for recovery of the suit property, following the provisions of Rule 208 of the Civil Rules & Order. The Civil Rule is, therefore, discharged without any order as to costs. Let this order and the records if already arrived, be sent down to the executing court forthwith.