A genuine third party can apply under Section 47 of the Code of Civil Procedure for protection against execution of a decree to which the third party contends himself to be an outsider and stranger.

This is an application for taking the plaint off the file on the ground that the subject matter of the suit is properly a matter for consideration under Section 47 of the Code of Civil Procedure.

2. The plaintiff respondent is a sub-lessee of the first defendant Oriental Insurance. A suit as between the second defendant, Delta International and Oriental was decreed whereby the tenant, Oriental suffered a decree of eviction.

3. There were two sub-tenants one of whom is the plaintiff in the instant matter and the other of whom was one Sampatraj Pagaria. An application against Sampatraj Pagaria regarding taking his plaint off the file has already succeeded and the judgment delivered by Shyamal Kumar Sen J. in the matter is reported in AIR 1992 Cal. page 153.

4. I find that as between that case and this, there is no significant difference. On the question of binding precedent, therefore, I agree with Mr. P.K. Roy, who appeared for the petitioner second defendant, that I am not free to decide differently and that on that basis I should also reject the present plaint in question.

5. However, I propose to say one or two things in view of a new argument that has been sought to be advanced by Mr. Mitter appearing for the said plaintiff respondent, who is still in possession.

6. Mr. Mitter said inter alia that his client is a sub-tenant with a protected right under the West Bengal Premises Tenancy Act and that he can maintain possession on his own on the basis of the provisions of the said Act notwithstanding a decree passed in eviction as against the tenant.

7. Mr. Mitter submitted that accordingly his client is not truly a representative of the judgment debtor tenant so that his suit is not barred under Section 47.

8. He also submitted that under Order 21, Rule 97, a decree holder, when he meets with resistance, can complain to the Court and so can a person other than the judgment debtor under Order 21, Rule 99 when he is dispossessed pursuant to the decree. Mr. Mitter submitted on the basis of these two Rules that if a third party resists a decree-holder then the decree-holder can apply under Order 21, Rule 97 and also that if a third party is dispossessed by a decree-holder he can apply for coming back into possession under Order 21, Rule 99.

9. But, said Mr. Mitter, there is no Rule in Order 21 which permits a third party to apply for protection against apprehended execution as against him of a decree to which the third party contends himself to bean outsider and stranger.

10. Mr. Mitter also said that such a quia timet application on the part of a genuine third party is not permissible under section 47 of the Code either as the said Section is limited to parties and their representatives and a third party claiming to be such, cannot apply either as party to the suit or as a representative of a party to a suit.

11. Before I come to deal with the persuasive authority of certain decisions relied upon by Mr. Mitter the logic of this submission must be examined. It what Mr. Mitter submits is right, then a third party dispossessed can apply in the execution court, and an obstructing third party can also be proceeded against by the plaintiff in an executing court. But, if the roles of the applicant and the respondent are merely reversed, then that same third party cannot make an application in the executing court for seeking protection against execution by the judgment creditor pursuant to the same decree in question. This would, to say the least, be a most odd distinction without any particular reason that I can see or define.

12. It is well known that the Sections of the Code are the primary part and that the orders and Rules in the First Schedule are amplificatory thereof. These Sections the High Courts cannot derogate from but they can make their own Rules different from the scheduled Orders and the Rules. In case Order 21, Rule 97 and Order 21, Rule 99, are not Rules, which are at least partly amplificatory of the position envisaged in Se