S. Rajendra Babu JUDGMENT
K.T. Thomas, J.
1. Special leave granted.
2. A sub-tenant, who was not party to a decree for eviction, resisted execution of the decree and the court ordered an inquiry under Section 151 of the CPC ('Code' for short). The High Court of Calcutta upheld that order and that is challenged in this appeal.
3. The suit property is a flat in "Harrington Mansion" situated on an important road at Calcutta. It was in the ownership of one Arun Kumar Jalan. He tenanted the premises to Rajiv Trust (first respondent) on 15-05-1975, who sublet the building to a company M/s. Accounting and Secretarial Service Private Limited (which will hereinafter be referred to as "the first sub-tenant"). Subsequently the first sub-tenant created another sub-tenancy under it in favour of second respondent M/s. Capstain Shipping Estate Private Limited.
4. Ownership of the building changed from Arun Kumar Jalan and it now vests with the Silverline Forum Private Limited, (the appellant herein) as per registered conveyance deed dated 24-1-1995. Appellant filed a suit for ejectment of the tenant against first respondent under the provisions of West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the "W.B. Act") on two grounds. First is that the tenant respondent had sublet the building without the consent of the landlord and second is that the tenant used it in such a manner as to impair its condition. A decree for ejectment was passed ex-parte on 12-12-1995. Before appellant set out with execution proceedings second respondent-sub-tenant filed a suit (O.S. No. 2997/95) against appellant and some others for a declaration and consequential injuncting orders. Though initially second respondent got an interim order injunction against ejectment it was subsequently vacated on 15-12-1995, but that suit is still pending.
5. In the meanwhile appellant moved for execution of the decree of ejectment. On 20-3-1996, bailiff of the court went to the premises for effecting delivery of possession, but he was resisted by the representatives of the second respondent and he reported the matter to the court. When he was again directed by the Court to effect delivery of possession with police help, he was unable to dispossess second respondent as the execution court has stayed dispossession in the meantime. Second respondent filed Miscellaneous Case 556 of 1996 before the execution court quoting order 21 Rule 101 and Section 151 of the Code, raising a contention that the decree was passed without making him a party and alleging that the decree was obtained in collusion between appellant and first respondent Rajiv Trust. Execution court, however, held that second respondent being a third party resistor cannot avail himself of the remedy provided in Order 21 Rule 101 of the Code. Nevertheless the remedy provided in ordered an inquiry to be conducted under Section 151 of the Code int........