Decided on October 15,1952

Express Estates Ltd. Appellant
Modern Furnishing House Respondents


Rajamannar, J. - (1.) THIS is an appeal against an order of Krishnaswami Nayudu, J. passed on 17 -7 -1951 by which he disposed of 4 applications in C. S. No. 419 of 1917 on the Original Side of this Court. Though there were four applications before Krishnaswami Nayudu J., the appeal relates only to one of the applications in which the respondent is the only party interested.
(2.) TILE facts necessary for disposal of this appeal are as follows: Premises Nos. 177 to 179, Mount Road, Madras, were originally leased to Bosotto Brothers Ltd. by the then owners of the building, Jamal Mahomed. On 22 -5 -1946, the Express Estates Ltd., the appellant before us, purchased the premises. By an order dated 13 -6 -1947, the Government exempted the building from the operation of the Madras Buildings (Lease & Rent Control) Act, 1946. On 26 -9 -1947, the appellant filed a suit, C. S. No. 419 of 1947 on the Original Side of this Court, for recovery of possession from Bosotto Brothers Ltd. and also for the recovery of rent at an enhanced rate. Pending the suit, the Government, by a subsequent order dated 11 -3 -1950 cancelled their prior order exempting the premises from the Rent Control Act. On 31 -7 -1950, a decree was passed in the suit for possession and for enhanced rent till delivery of possession. The appellant filed an application for execution of the decree, E. P. No. 233 of 1950. After notice to Messrs. Bosotto Brothers Ltd. the judgment -debtor in the case, the application was ordered. When the representative of the appellant went along with the bailiff to take delivery of possession, he found that portions of the premises were in occupation of 4 persons, one of whom was the respondent before us, namely, the Modern Furnishing House. The said persons obstructed the delivery of possession and claimed that they were entitled to remain in possession in their own right. Thereupon the appellant filed an application for removal of obstruction, E. A. 788 of 1951. The learned Judge dismissed the application on the ground that the obstructors were Entitled to remain in possession, because, the decree for possession could not be executed on account of the provisions of Section 7 of Madras Act 25 of 1949 (which had replaced the Act of 1946). The reasoning of the learned Judge was shortly as follows : Under Section 7(1), Rent Control Act, a tenant shall not be evicted in execution of a decree or otherwise except in accordance with the provisions of that section. The expression "tenant" in Section 7(1) of the Act does not mean and include only a tenant in actual possession but will also include a tenant in constructive possession, with the result that even though a tenant might have vacated a portion of the building and had let in sub -tenants in other portions of the building, the tenant" must be deemed to be in constructive possession of the entire premises, and there can be no execution of a decree for ejectment against such a tenant.
(3.) WITH respect to the learned Judge, we think he has overlooked one important fact in this case. Whether in actual possession or in constructive possession, there can be no doubt whatever that the tenant of the premises was Bosotto Brothers Ltd. It is common ground that Bosotto Brothers Ltd. did not raise any objection to the execution of the decree for possession. It may be that they could have raised an objection under Section 7(1), Rent Control Act, but actually they did not. After notice to them, a final order for execution was passed by this Court. The question is, can the respondent who admittedly was a subtenant of Bosotto Brothers Ltd. having been let into possession by them sometime in 1949 when the ejectment suit was pending, be heard to say that the decree cannot be executed against them? It was contended on behalf of the respondent company that as they claimed under Bosptto Brothers Ltd. they could raise all objections which Bosotto Brothers Ltd. themselves could have raised to the execution and they could take advantage of Section 7(1), Rent Control Act, advantage of which could have been taken by Bosotto Brothers Ltd. We do not agree with this contention. The right given by Section 7(1) of the Act is expressly given to the tenant and the definition of "tenant" in Section 2(4) of the Act would not include a person placed in occupation of a building by its tenant, that is, a person in the position of the respondent. While therefore Section 7(1) cannot, according to a proper construction of its language, apply to the respondent and confer any rights on him, we cannot permit the respondent to get the same benefit indirectly on the ground that they claim under Bosotto Brothers Ltd. We reject this contention.;

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