An order for eviction by itself does not determine the lessee's title to realise rent from the sub-lessee and such an order even before its execution cannot constitute eviction by title paramount.

ANIL K. SEN, J.:- This is a revisional application at the instance of the opposite party in a distress proceeding under the Presidency Small Cause Courts Act, being Distress Case No. 120 of 1983 of the 4th Bench of the Court of Small Causes, Calcutta. The order impugned is one dated 14-1-1984, passed by the learned Judge, 4th Bench, overruling an objection to the distress preferred by the opposite party under S.60 of the said Act. The facts are not in dispute and the point involved is one of question of law.

2. The petitioner before the Court of Small Causes, Calcutta, Messrs. Manton and Company Limited was a lessee in respect of premises No. 13/3, Old Court House Street, Calcutta. The lessee suffered an order for eviction passed by the Tribunal constituted under the Public Premises (Eviction of Unauthorised Occupants) Act dated 18-3-1976. An appeal preferred by the lessee against the said order of eviction under S.9 of the said Act succeeded when the learned

Chief Judge, City Civil Court, Calcutta, on 10-9-1981, set aside the said order of eviction. The appellate order, however, was set aside by this court on May 29, 1982, in C.R. 158 of 1982 and this court restored the original order of eviction. The lessee preferred a special leave application before the Supreme Court against the said order of this court but the Supreme Court by an order dated 29-9-1982, dismissed the said special leave application but allowed the lessee time till 30-9-1983, to vacate.

3. At the time when the aforesaid C. R. 158 of 1982 was pending in this court and the order for eviction stood set aside by the learned Chief Judge, City Civil Court at Calcutta, the petitioner before us Messrs. Sree Genesh Trading Company Private Limited was inducted as a sub-lessee by the lessee on 24-10-1981. The rent payable by the sub-lessee to the lessee for the period October 1982 to August 1983, being in default the lessee instituted the aforesaid distress proceedings, being Distress Case No. 120 of 1983 against the said sub-lessee, the petitioner before us. To this distress, an objection was preferred by the sub-lessee under S.60, Presidency Small Cause Courts Act, to the effect that the relationship of landlord and tenant as between the parties stood determined by the order for eviction which was restored by this court on May 29, 1982. This objection has been overruled by the learned trial Judge who held that "neither in law nor in equity the defendant can resist the claim of the plaintiff for rent for the period in question."

4. Mr. Das Gupta appearing in support of the revisional application has raised only one point in support thereof before us. According to Mr. Dasgupta, the effect of the order for possession as was upheld by this court in C. R. 158 of 1982 is to determine the title of the lessee as such and such an order for eviction constitutes eviction by title paramount. The point thus raised by Mr. Dasgupta has been strongly contested by Mr. Mukherji who is appearing for the lessee.

5. The short point that arises for our consideration, therefore, is as to whether the order for eviction as passed against the lessee by itself determines the lessees title to realise rent from the sub-lessee and whether such an order even before its execution can constitute eviction by title paramount. On a careful consideration of the point so raised, it appears to us that such a point is no longer res integra. Such a point was specifically raised before a Division Bench of this court in the case of National Jewellery Works v. D. P. Works (1959) 63 Cal WN 192 and this court in express terms upheld the claim of rent of a lessee who has suffered a decree for eviction but yet had not been evicted in execution thereof. Mr. Mukherji has rightly drawn our attention to two other decisions supporting the same view. In the case of Adya Nath Ghatak v. Krishna Prosad Singh AIR 1949 PC 124, the Privy Council held that a tenancy between A and C stood determined not by the decree for e