A sub-tenant is entitled to apply for restoration of possession under Order 21, Rule 100, Civil P. C. and Section 13 (2), Rent Control Act, 1950, if the decree obtained by the landlord against the tenant is not executable against the sub-tenant.

( 1 ) THIS Rule was obtained against an order of Mr. S. K. Roy learned Judge of the Presidency Court of Small Causes, Sixth Bench, rejecting an application filed by the petitioner purporting to be under Order 21, Rule 100, Section 144, Civil P. C. and Section 13 (2), Rent Control Act, 1950. The admitted facts are that the opposite party 2 was a tenant under the opposite party 1. The petitioner is a subtenant under opposite party 2 in respect of a portion of the premises held as tenant by the opposite party 2 under opposite party 1.

( 2 ) ON 10-1-1951 the opposite party 1 obtained a decree in ejectment against opposite party 2 on the ground of default in payment of rent after service of a notice to quit. In execution of that decree the opposite party 1 wanted to eject the petitioner from the disputed property but was resisted by the petitioner in taking possession. On the next date the opposite party 1 dispossessed the petitioner with police help. Thereafter the present application was filed by the petitioner for restoration of possession under Order 21. Rule 100, Section 144, Civil P. C. and Section 13 (2), Rent Control Act, 1950:, before the learned Judge of the sixth Bench. An objection was raised by the opposite party 1 that the application was not maintainable. The learned Judge without deciding the merits of the application was of the opinion that the application as laid was not maintainable and dismissed the same. It is against this order that the petitioner has moved this Court in revision.

( 3 ) MR. Dutta Roy, learned Advocate who has appeared in support of the petition, has submitted that the application which was filed by the petitioner in the Court below was really an application under Order 21, Rule 100, Civil P. C. Mr. Dutta Roy has contended that he was not the judgment-debtor and was not in possession on account of the judgment-debtor and as such he was entitled to be restored to possession under the provisions of Order 21, Rule 100.

( 4 ) MR. Ghosh, learned Advocate for the opposite party 1, has first submitted that this Court should not interfere in revision as the petitioner has other remedies. In this case the learned Judge of the Court of Small Causes dismissed the application on the preliminary ground. The question is whether on the face of the application the petitioner has a right to apply for restoration of possession. It seems to me that in the facts of this case there is no reason why we should not exercise our powers in revision and give the petitioner the remedy to which he is entitled under the statute. The learned Judge, in my opinion, has clearly misconceived the scope of the application under Order 21, Rule 100, Civil P. C. and the effect of Section 13 (2), Rent Control Act, 1950.

( 5 ) MR. Ghosh has further contended that in effect the decree obtained by opposite party 1 against opposite party 2 was executable as against the petitioner and as such the petitioner has no right to apply under Order 21, Rule 100. He has referred us to a decision of the Bombay High Court in the case of -- 'jairam Jadowji v. Nowroji Jamshedji', AIR 1922 Bom 449 (2) (A), as also to the case of -- 'sailendra Nath v. Bijan Lal', AIR 1945 Cal 283 (B ). These cases are clearly distinguishable. In these cases the decree for ejectment against the tenant was executable as against the subtenant, the decree having proceeded on a ground which determined the sub-tenancy as well. In order that the landlord can recover possession from the sub-tenant he must show that he has a right to treat the sub-tenancy. at an end and to recover possession from the subtenant on the footing that the sub-tenancy no longer exists. In view of the provisions of Section 13 (2), Rent Control Act, 1950, as the ejectment decree did not proceed on the ground mentioned in Section 12 (1) (h), Rent Control Act, 1950, the petitioner, who was a sub-tenant under the tenant of the first decree, would be deemed to be a tenant under the landlor