A sub-tenant who has an independent right to possession can lawfully resist the execution of an order for ejectment against the tenant.

( 1 ) THIS Rule was issued calling upon the opposite parties to, show cause why they should not be committed to prison for contempt of Court. The facts are not in dispute and have to be taken as stated in the petition since the opposite parties have not denied them by any affidavit.

( 2 ) THE petitioner is the tenant of a shop room in Lindsay Street, Calcutta. He had sublet two window spaces in this room to the opposite party No. 1. It is not clear whether any room space was included in the sub-tenancy but that does not affect the question to be decided. The petitioner had started ejectment proceedings against the opposite party No. 1 in the Court of Small Causes, Calcutta, in respect of the demised spaces. These proceedings had eventually been brought over to this Court in its revisional jurisdiction and finally terminated in favour of the petitioner by an order made by Roxburgh J. on April 10, 195. 1. That order was in these terms: "the bailiff of the Court to give possession of the property to the applicant on July 2, 1951. "

( 3 ) THIS order was duly put in execution by the petitioner and on July 2, 1951, the bailiff of the Court of Small Causes put the petitioner in possession of the demised spaces. It appears that police help had been taken by the bailiff as it was apprehended that there might be forcible resistance to the execution of the order. As it turned out however, there was in fact no such resistance but soon after possession had been delivered to the petitioner and the bailiff and the police had left the place, the opposite party No. 2, who had all along been standing by, retook possession of the demised spaces by force from the petitioner. This is the act which is said to constitute the contempt.

( 4 ) TO clear the grounds it may be stated at once that there is no allegation in the petition that the first opposite party had taken any part in the retaking of possession nor that the second opposite party was acting at the instance or on behalf of the first opposite party. Indeed, the petition does not state that the first opposite party did anything at all. In the absence of any allegation regarding the first opposite party there is clearly no case of contempt of Court against him. As we understood the learned Advocate for the petitioner he concedes this. The Rule against the opposite party No. 1 must, therefore, be discharged.

( 5 ) IN this matter we are really concerned with the opposite party No. 2 only. The question is, was the forcible retaking of possession by him immediately after the bailiff had retired, a contempt of Court?

( 6 ) THE rule clearly is that the wilful disobedience to an order of a Court requiring a person to do an act, other than the payment of money is a contempt: Halsbury's Laws of England (2nd Edn.), Vol. VII, p. 30, Article 42. But that rule does not, in our view, help the petitioner in the present case and this for two reasons. First, in order that the rule may apply there must be an order on a person to do an act and in this case there is no such order. All that the order of Roxburgh J. does is to direct the bailiff to deliver possession: it does not direct any other person to do any act. There is no question here therefore of any person disobeying an order, unless it is the bailiff. The case of 'iberian TRUST LTD. v. FOUNDER's TRUST and INVESTMENT CO. LTD. ', (1932) 2 K B 87, may be usefully compared with the case in hand. That was also a case of contempt for not carrying out an order of the Court and it failed on the ground that there was no order on the defendant, the alleged contemnor. Luxmoore J. said (at p. 95):"now, turning back to Rowlatt J's order, what is it that the defendant company have been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything it says: 'that the plaintiffs to have a return of the said shares within fourteen days. ' Am I to spell out of that an order on