An application under Section 47, Civil Procedure Code, cannot be entertained if the right claimed by the applicant is independent of the right of the tenant and cannot be enquired into in a proceeding under Section 47.

( 1 ) THIS is an appeal against an order of the Special Bench of the Court of Small Causes refusing to entertain an appeal against an order of a Judge of the Small Causes Court passed on an appli cation purported to be an application under Section 47, Civil P. C.

( 2 ) THE appellant before us claims to be a sub tenant in respect of premises No. 13, Pagoapally Street, Calcutta. There was an ejectment decree obtained by the landlords in the Court of the Small Causes -against a tenant of the said pre mises. The landlords having obtained the decree for ejectment applied for execution. In the said execution proceedings an objection was filed by the present appellant and others claiming to be sub-tenants of the original tenant. The conten tion of the appellants and the other sub-tenants, was that by virtue of the provisions of the Rent Act they had become direct tenants of the land lord and as such they are entitled to remain in the premises as tenants. The learned Judge dis missed the application holding that the petitioners" rights cannot be enquired into in an application under" Section 47 and the proper remedy of the ap pellants was to file a suit. Against that order an appeal was preferred to the Special Bench of the Court of Small Causes, The Special Bench held that such an appeal cannot be entertained by the said Bench. The learned Judges referred to the provisions of Sub-section 6 of Section 32 and held that under the said provisions an appeal lies only from a decree in a suit for ejectment passed by a Judge of the Small Causes Court and an appeal from the order in question cannot be entertained. It is against that order that the present appeal has been preferred to this Court. I should mention that the remaining subtenants had also preferred an appeal to this Court and so far as their cases are concerned a Bench of this Court has held that although the right claimed by them cannot be enquired into or ascertained in a proceeding under Section 47, Civil P, C. , the learned Judge should treat the application as a suit on payment of additional court-fees by the appellants before their Lordships.

( 3 ) IN the present appeal the learned Advocate appearing for the appellants raised two contentions. In the first place, he contended that the Special Bench was wrong in not entertaining the appeal. In other words, his contention was that the Special Bench should have gone into the question as to whether or not the appellants could file such an application under Section 47, Civil P. C. , or whether the remedy of the appellants was to institute a regular suit as held by the said Court, The learned Advocate contended that this question as to whether or not the application comes within Section 47 is a question which the Special Bench should have decided,"

( 4 ) AS a pure question of law, we are of the opinion that the learned Advocate is right in his contention that the question as to whether or not the application comes within Section 47 should have been gone into by the Special Bench. Under sub-Section 2 of Section 2, Civil P. C. a "decree" includes determination of any question within Section 47. So the learned Judge of the Court of Small Causes who passed the decree for ejectment could also determine all questions coming within Section 47 of the Code relating to the said decree. In this case the view taken by the trial Court was that the question raised by the appellants in the said application was not a question which can be determined in a proceeding under Section 47 of the Code and the said Court dismissed the application holding that the proper remedy of the appellants was to file a suit. How then is it to be determined as to whether or. not the view taken by the learned Judge was right! In our opinion, the Special Bench should have gone into the question and come to a decision as to whether or not the application filed, by the appellants before the lower Court was an application which comes within Section 4