- (1.) The opposite party brought a suit for ejectment of one Gurupada Haldar on the averment that the tenancy has been terminated. In the same suit he also impleaded is Defendants the Asiatic Trading Company on the averment that Gurupada Haldar has sub-let the whole of the premises to the Asiatic Trading Company without his knowledge and consent. One Mukunda who is said to have been in possession of a portion of the premises under the Asiatic Trading Company was also made a party but we are not, in the present case, concerned with him. The opposite party put this decree into execution. After the opposite party had put this decree into execution he made a complaint before the executing court that when he had gone on March 13, 1954, to take delivery of possession- Some men of the judgment-debtors, namely, Debendra Nath Adhikary, Suresh Dey and Sudhir Dey put resistance and threatened him with violence if attempt be made towards taking delivery of possession, and lie prayed for police help for taking delivery of possession. Thereafter an application was filed by the present Petitioners purporting to be a petition under Section 13(2) of the West Bengal Premises Rent Control Act of 1950 in which they stated that the tenant of the first degree Shri Gurupada Haldar took settlement of the entire premises from the decree-holder and with his consent sub-let the entire premises to the Asiatic Trading Company who in its turn with the consent of Shri Gurupada Haldar, the tenant of the first degree, sub-let different portions of the premises to different persons including the Petitioners a few years ago, and that the tenancies of Gurupada Haldar and Asiatic Trading Company having been determined, these Petitioners were now direct tenants under the decree-holder opposite party and he was therefore not entitled to disturb the Petitioners. A few days, later a further application was filed on behalf of the Petitioners stating that Section 13(2) of the West Bengal Premises Rent Control Act had been wrongly mentioned as the provision of law under which the application had been filed and that it should be treated as an application under Section 47 of the Code of Civil Procedure. The learned Subordinate Judge has dismissed this application.
(2.) The main contention before us is that if the learned Subordinate Judge had looked at the substance of the matter, instead of the form, he would have clearly found that the application in which the decree-holder applied for police help was really an application under Order XXI, Rule 97 of the Code of Civil Procedure and that the application of the present Petitioners wrongly mentioned as an application under Section 13(2) of the West Bengal Premises Rent Control Act and later sought to be described as an application under Section 47 of the Code of Civil Procedure was nothing more than a petition of objection to the application under Order XXI, Rule 97 of the Code of Civil Procedure. It is contended that the learned Subordinate Judge should have in these circumstances investigated the matter under Order XXI, Rule 97 of the Code of Civil Procedure and in not doing so he has refused to exercise a jurisdiction that was vested in him.
(3.) We are inclined to agree that in substance the application in which the opposite party decree-holder prayed for police help for delivery of possession was an application under Order XXI, Rule 97 on the Code of Civil Procedure. That rule provides in its firs sub-clause Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted q obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction and provides in its second clause: The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.;