Rigby J:

This is an appeal from a decision of Mr. BJ Jennings, the then President of the Sessions Court, Penang, upholding an objector's claim in certain execution proceedings brought to recover the possession of certain premises, to wit, No. 49-H, Weld Quay, Penang, pursuant to an Order of the Court made as against the tenants.

[After relating the facts briefly stated in the headnotes above, the learned Judge continued:]

On the hearing of the objection the learned President found the following facts:-

(1) That the respondent and his family had been living in these premises (or part of them) continuously since 1947 as a monthly tenant of the chief tenants, M/s. Tong Lee Hin Ltd.;

(2) That he had not been in arrears with his rent; and

(3) That he never had any reason to doubt that he was anything else but a lawful sub-tenant. He further found:

(1) That the appellants, as landlords, were never aware of the sub-tenancy;

(2) That they had good reason to believe that no one but the chief tenants occupied the premises;

(3) That the chief tenants were prohibited from sub-letting without the consent of the landlords in writing; and

(4) That no such consent was applied for.

He further added:

......... in the circumstances of this case I would not consider a refusal to permit a sub-letting to be unreasonable had permission been asked for.

Section 19 of the Control of Rent Ordinance, 1956, enacts:

19. (1) Where any order or judgment for the recovery of possession has been obtained against the tenant of any premises, such order or judgment shall not be enforceable against any such sub-tenant of such tenant unless -

(a) the Court is satisfied that such tenant was prohibited by the terms of his tenancy from sub-letting or that such sub-tenant has used the premises for illegal or immoral purposes; and

(b) such sub-tenant has been made a party to the proceedings or has had an opportunity of being heard. Every order or judgment for possession made against any tenant shall declare whether it shall be enforceable against any sub-tenant or not.

(2) Any sub-tenant against whom such judgment or order is not enforceable shall, if he remain in possession after notice of the judgment or order has been served on him, cease to be a sub-tenant of the tenant and become a statutory tenant of the landlord in respect of the premises comprised in his subtenancy.

Under s. 19(1) (a) the learned President was satisfied that M/s. Tong Lee Hin Ltd. were prohibited by the terms of their tenancy from sub-letting. In his grounds of judgment he stated, however:-

I hold that the sub-tenant in this case has some protection under s. 19 of the Ordinance. The existing order of ejectment would not be enforceable against him - although I am satisfied that sub-letting was prohibited-unless he has been made a party to the proceedings or has had an opportunity of being heard. I hold this to mean that the sub-tenant must be made a party to the ejectment proceedings or be given an opportunity of being heard before the decree for possession is ordered: it would not be enough to give him an opportunity of being heard in these objection proceedings. He was not a party to the ejectment proceedings if and he had not been given an opportunity of being heard before the decree for possession was issued. The fact that the landlords were never aware until now of his existence is ignored by s. 19. The Order for possession must declare whether it is enforceable against a sub-tenant or not: it does not do so."

The short, but nevertheless important practical, point for consideration is, therefore, whether the words "or has had an opportunity of being heard" appearing in s. 19(1) (b) are restricted to "an opportunity of being heard" in the original proceedings between landlord and tenant when the Eviction Order was made, or whether they are intended to include proceedings, such as the present, where objection has been taken to a proposed execution of the Order for ev