Guha, J. - (1.) This is an application under section 115 of the Code of Civil Procedure by the plaintiff petitioner against an order passed by a Small Cause Court Judge on 1st September, 1953, rejecting his application under Order 21, Rule 97 of the Code of Civil Procedure. The subject matter of the dispute is a shop room at 201/B, Harrison Road. The present petitioner obtained a decree for ejectment against a firm styled Messrs. Raja Ram Ram Samaj Singh and when the decree was sought to be executed, there was resistance by opposite party No. 2 Messrs. Prokash Stores. Thereupon, the decree-holder filed an application under Order 21, Rule 97 of the Code of Civil Procedure alleging that the obstruction was occasioned by the judgment-debtor. On the same day another application was filed by Prokash Stores under Order 21, Rule 100 alleging that they were sub-tenants under the judgment-debtors. The application preferred by Messrs. Prokash Stores under Order 21, Rule 100 of the Code of Civil Procedure has been rejected on the ground that it is not maintainable as there is no allegation that Messrs. Prokash Stores have been dispossessed. In so far as the application presented by the decree-holder, namely, the present petitioner, under Order 21, Rule 97 is concerned, the learned Judge has come to the conclusion that the decree-holder is not entitled to the benefit of Rule 98 of Order 21, inasmuch as the resistance in question was not occasioned by the judgment-debtor or by some other person at his instigation or on his behalf. As regards the finding of the learned Judge that the decree-holder cannot get any relief under Order 21, Rule 98 of the Civil Procedure, no serious challenge has been directed by the learned Advocate for the petitioner. What, however he contends strongly is that the court should have given him relief under Order 21, Rule 99 of the Code of Civil Procedure. He argued that the resistance offered by Messrs. Prokash Stores cannot be said to be resistance occasioned by a person claiming in good faith to have a right to be in possession of the property on their own account or on account of some person other than the judgment-debtors and, accordingly, the decree-holder is entitled to the benefit of Rule 99. In this connection he has referred me to several cases. One of these cases is the case of Ramaswami Nadar v. Shanmugha Malavarayan, (A.I.R. 1928, Mad 909), in which relying upon two Bombay cases Jafferji v. Miyadin, (I.L.R. 46 Bom. 526) and Jairam v. Nowroji Jameshedji, (A.I.R. 1922 Bom. 449) it was held that Order 21, Rule 99, by its wording implies that when the Court is not satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the property on his own account i.e., if it is not satisfied, e.g., with the claimant's good faith, or that he is in possession on his own account, the Court shall allow the application. I would concede that this construction of Order 21, Rule 99 is correct. The next point for consideration is whether Messrs. Prokash Stores can be said to be persons (other than the judgment-debtors) claiming in good faith to have a right to be in possession of the property on their own account or on account of some person other than the judgment-debtors. In the view of the learned Judge, "the evidence regarding a valid sub-tenancy in favor of Messrs. Prokash Stores by the firm Messrs. Raja Ram Ram Samaj Singh is not very satisfactory. But nevertheless the fact remains that the room in question was in possession of Prokash Stores for some time past." The Municipal Trade License would show that it (i.e., Messrs. Prokash Stores) was in existence from December, 1952, that is since before the filing of the ejectment suit. It has been further found that the sub-tenancy was not created by the judgment-debtors nor again did the superior landlords recognize it. According to the case of Messrs. Prokash Stores, the sub-tenancy was granted by one Nandalal Singh who according to them was a partner of the judgment-debtor firm. But this story about Nandalal being a partner does not appear to have been accepted by the lower court and the alleged sub-tenancy said to have been granted by Nandalal Singh has not been held to be valid. According to the case of the judgment-debtors Nandalal was simply an employee of theirs and not a partner and this case seems to have found favour with the Judge.
(2.) The question now is whether in the above circumstances Messrs. Prokash Stores can be permitted to defeat the claim of the decree-holders for relief under Order 21, Rule 99. In my opinion the answer should be in the affirmative. The real question is whether Messrs. Prokash Stores can be said to be persons claiming in good faith to be in possession on their own account. They were in possession since before the institution of the ejectment suit. In the plaint also of that suit there is mention of transfer of the tenancy by the defendants, namely, Messrs. Raja Ram Ram Samaj Singh though the name of Messrs. Prokash Stores was not mentioned. Even if Messrs. Prokash Stores be held to be trespasser, they can well claim to be in possession on their own account They were not impleaded in the ejectment suit (see in this connection Narayan Bera v. Jharu Mandal of Baratola, (A.I.R. 1928 Cal. 792). The case of Sew Sankar Lal v. Bejoy Krishna Dutt, (57 C.W.N. 65), is no direct authority for the proposition contended for on behalf of the petitioner; it deals with a converse case. The case of Radhika Mohan Saha v. Gyan Chandra Shaha, (6 Indian Cases, Cal. 120), is again of no assistance to the petitioner. Messrs. Prokash Stores are in possession and their bona fide claim does not entitle the decree-holder to relief under Order 21, Rule 99 and, therefore, no question of equitable relief can arise.
(3.) In these circumstances, therefore, I am of opinion that neither under Order 21, Rule 98 nor under Rule 99 is the decree-holder entitled to the relief prayed for by him. The Rule must accordingly be discharged. But in the circumstances no order is made as to costs.;