Sub-tenants cannot challenge the execution of an eviction decree against the original tenant as they are not necessary parties to the suit.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard the learned counsel appearing on behalf of the petitioners.

2. This petition is filed under Article 227 of the Constitution of India for quashing of the order dated 18.03.2023 passed by the learned Principal District Judge, Dhanbad in Civil Miscellaneous Appeal No.28 of 2022 whereby the memo of appeal filed by the petitioners under Order XXI Rule 97, 98 and 101 read with Section 151 of the C.P.C for setting aside the order dated 08.12.2022 passed by learned Civil Judge (Jr. Div.)-1^st Dhanbad in Misc. Civil Application No.157 of 2022 (Arising out of Execution Case No.47 of 2019) has been rejected.

3. Mr. Mukhopadhyay, the learned counsel appearing on behalf of the petitioners submits that the petitioners are not the party in Title Suit No.6 of 2008 which was decreed in favour of the Opposite Parties by the judgment and decree dated 17.11.2017 passed by learned Civil Judge (Junior Division)-1^st Dhanbad. He submits that the suit was filed for eviction and that has been decreed in favour of the plaintiff. He submits that fraudulently the decree has been obtained against the petitioners. He further submits that later on the petitioners have come to know about the aforesaid judgment/ decree dated 17.11.2017 passed by the learned court in Title Suit No.6 of 2008 and have filed application under Order XXI Rule 97, 98 and 101 read with Section 151 of the C.P.C being Misc. Civil Application No.157 of 2022 arising out of Execution Case No.47 of 2019 praying for stay of operation of Execution Case No.47 of 2019 and further prayed to pass necessary order upon the determination of question referred under Order XXI Rule 101 CPC . Further prayer was made not to evict them from the respective shops. He submits that the learned court by order dated 18.12.2022 dismissed the aforesaid Misc. Application which was challenged before the learned District Judge, Dhanbad in Civil Misc. Appeal No.28 of 2022 and he has also been pleased to reject the same. He submits that Misc. Appeal is maintainable and in spite of that the learned Principal District Judge, Dhanbad has not entertained the said appeal. He relied in the case of S. Rajeswari v. S.N. Kulasekaran And Others in Appeal (Civil) No.1417 of 2001

4. It is an admitted position that the said suit was filed by the land- lord for eviction of the tenant which was decreed in favour of the land-lord. The Execution Case was proceeded in which the petitioners have filed a petition under Order XXI Rule 97 CPC which was rejected by the learned trial court and further Civil Misc. Appeal preferred was rejected by the Principal District Judge, Dhanbad. It is further admitted that the petitioners are the sub-tenant of the original tenant and if there is agreement of lease between the land-lord and the petitioners they are not necessary party in the suit for eviction and rightly they have not been made party to the suit as they are the sub-tenant of the original- tenant. In this background, the learned court has found that said judgment/ decree was not obtained by way of any fraud and in view of that, he has not framed any further issue for determination of the same and dismissed the petition which was challenged before the learned Principal District Judge, Dhanbad and he has also found that initially the lease was executed between the parties for a period of 20 years and after expiry of the said period the decree-holders requested the judgment-debtor to vacate the tenant premises. A fresh lease deed was further executed between the parties for a period of three years wherein it was agreed that after the expiry of three years period, the judgment-debtor shall vacate the suit premises but he did not do so and pursuant to that the decree-holders were constrained to file the suit before the learned court which ultimately decreed by the judgment dated 17.11.2017. The learned Principal District Judge, Dhanbad has found that the petitioners are sub-tenants of the judgment-debtors a