UNITED FOOD PRODUCTS LTD Vs. HARIPADA MUKHERJEE

JUDGEMENT

(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-

(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