JUDGMENT Chakravartti, J. - The facts of this suit are simple, but they raise a question of law which is one of first impression and not very easy to decide. The facts are as follows. Defendant No. 1, Puma Chandra Mullick, is admittedly the owner of Premises No. 50, College Street, Calcutta. Admittedly, in the year 1932, he let out the said premises, with the exception of some shop-rooms in the ground floor, to Defendant No. 2, Nihar Ranjan Mukherjee. On the 18th June, 1947, Defendant No. 1 instituted a proceeding in the Court, of Small Causes, Calcutta, for ejectment of Defendant No. 2 and prayed for an order for possession against him under sec. 41 of the Presidency Small Cause Courts Act. Previously, he had served on Defendant No. 2 a notice to quit and obtained the permission of the Rent Controller to sue him in ejectment. The proceeding which, under the rules of the Small Cause Court, was classed as a suit, was decreed ex parte on the 16th July, 1947, and Defendant No. 2 was directed to give up possession by the 20th August. On the 8th August, Defendant No. 2 made an application for a new trial whereupon execution was stayed, but the application was ultimately dismissed on the 1st October, 1947. Thereafter, the time for delivery of possession was extended twice by consent and a third time on the application of Defendant No. 1 himself, as the date fixed on the second occasion and a few subsequent days happened to be holidays. The date for delivery of possession fixed on the third occasion was the 28th January, 1948. On the same day the present suit was filed. 2. The suit has been brought by three persons who claim to be sub-tenants, each in respect of a single room, under Defendant No. 2, Nihar Ranjan Mukherjee. Their case is that Premises No. 50, College Street was let out by Defendant No. 1 to Defendant No. 2 "for the purpose of sub-letting the same to different sub-tenants and running a lodging house and establishment" and that, in pursuance of that arrangement between the Defendants, Defendant No. 2 sub-let three several rooms to them. Their further case is that they have been in occupation of the said three rooms as sub-tenants to the knowledge of Defendant No. 1. Their further case is that they have been in occupation of the said three rooms as sub-tenants to the knowledge of Defendant No. 1. Plaintiff No. 1, Hirendra Bhusan Chowdhury, occupies a room on the first floor and pays a monthly rent of Rs. 6-8; Plaintiff No. 2, Benoy Bhusan Ghose, also occupies a room on the first floor and pays a rent of Rs. 4 per month; and Plaintiff No. 3, Ajit Kumar Das, occupies a room on the second floor and pays a rent of Rs. 8 per month. Other rooms are said to be in the occupation of other sub-tenants. The plaint proceeds to state that it was only when Defendant No. 1 started proceedings in execution that the Plaintiffs came to know that Defendant No. 1 had brought a suit in the Small Cause Court against Defendant No. 2 and obtained an ex parte decree. In that suit, Defendant, No. 1 deliberately suppressed the fact that there were sub-tenants on the premises who had a right to the use and occupation of the rooms of which they were respectively in possession and did not make any of them a party. The Plaintiffs aver that the decree obtained by Defendant No. 1 against Defendant No. 2 is not binding on them and they are not liable to be evicted in execution thereof. Accordingly, they pray for a declaration that the decree dated he 16th July, 1947, passed by the Small Cause Court in Suit No. 3266 of 1947, is invalid, inoperative and not binding on hem and also for an injunction restring Defendant No. 1 from interfering with their possession of the rooms in their occupation or taking any steps to evict them therefrom. 3. Defendant No. 2 has not appeared in the suit. Defendant No. 1 contends that the, suit is not maintainable. He denies that be let out the premises concerned to Defendant No. 2 for the purpose of subletting the same to sub-tenants or for running a lodging establishment therein and states that he has no knowledge of any sub-letting. According to him, he granted an ordinary monthly tenancy to Defendant No. 2 at a rent of Rs. 110 per month. He does not admit that the Plaintiffs are sub-tenants or even occupants of any portion of the premises. According to him, he granted an ordinary monthly tenancy to Defendant No. 2 at a rent of Rs. 110 per month. He does not admit that the Plaintiffs are sub-tenants or even occupants of any portion of the premises. He denies that the Plaintiffs or any one of them were necessary or proper parties to the suit in the Court of Small Causes and denies further that he suppressed any material facts in that suit. He states that, in any event, the Plaintiffs have no rights against him and are bound by the decree and that the suit is a mala fide one, brought at the instance of Defendant No. 2 as a last resort for delaying execution. 4. Along with filing their plaint, the Plaintiffs gave notice of a Motion for an order staying execution of the decree and restraining Defendant No. 1 from disturbing the possession of the Plaintiffs till the disposal of the suit. It appears from the affidavits filed in connection with the Motion that on the 28th January, 1948, while the Plaintiffs were filing the present suit in the High Court, an agent of Defendant No. 1, accompanied by the bailiff of the Small Cause Court, went to the premises to take possession but was unable to do so as the outer door of the house was found closed. Defendant No. 1 then obtained an extension of the time for delivery of possession till the 9th February, 1948, and caused a letter to be written by the Small Cause Court for police help. In the meantime, the Motion filed by the Plaintiffs was adjourned from date to date and they were refused an interim order of stay and injunction. They then went to the Small Cause Court and made an application there for stay of execution. Execution has apparently remained stayed and although the Plaintiffs are interested in only three rooms, Defendant No. 1 has in effect been kept out of possession of the whole premises. The Motion is still pending and has come up for hearing along with the suit. 5. Execution has apparently remained stayed and although the Plaintiffs are interested in only three rooms, Defendant No. 1 has in effect been kept out of possession of the whole premises. The Motion is still pending and has come up for hearing along with the suit. 5. To return to the suit, apart from the issue as to whether the suit is maintainable, the two issues which arise on the pleadings are, (i) whether the Plaintiffs are sub-tenants in respect of portions of the premises, as alleged and (ii) if they are, whether they are bound by the decree passed against their lessor, Defendant No. 2. 6. The only evidence in the case is that of Plaintiffs Nos. 2 and 3 who examined themselves. I am satisfied from their evidence that the three Plaintiffs are in occupation of three rooms, as sub-tenants under Defendant No. 2 and were so at the dates of the suit and the decree. It is true that they have not produced any rent-receipts, although their allegation that they were sub-tenants was traversed in the written statement of Defendant No. 1. But as regards Plaintiff No. 3, he has given an explanation which, I accept and as regards the others, it appears to me that the rent receipts were just not thought of, although they should have been. Apparently, it is Plaintiff No. 3 who has been giving instructions in connection with the suit and when he informed his Attorney that some of his rent receipts were with the Government and some had been burnt down, the enquiry was not pursued further as regards any receipts that might be held by the other Plaintiffs. It is common knowledge that little care is taken of rent receipts by petty tenants of this, class. I cannot accept the suggestion put forward on behalf of Defendant No. 1 that Defendant No. 2 has set up some perfect strangers to pose as sub-tenants. In fact, the suggestion was hardly mentioned in the course of the argument which was limited to the second question. I saw the two witnesses in the box and believe their evidence that they and the first Plaintiff are sub-tenants. 7. The really important issue in the suit is the third one. In fact, the suggestion was hardly mentioned in the course of the argument which was limited to the second question. I saw the two witnesses in the box and believe their evidence that they and the first Plaintiff are sub-tenants. 7. The really important issue in the suit is the third one. It raises a pure question of law and so far as questions of fact were sought to be mixed up with it by either side, I consider those to be irrelevant. The Plaintiffs alleged that the premises had been let out to Defendant No. 2 for the purpose of sub-letting and running a boarding-house establishment thereon. Assuming it was so, the lodgers of Defendant No. 2 could not, in the absence of a special contract with them, have any right to continue in occupation of the premises after the tenancy of Defendant No. 2, which was only a monthly tenancy, had been validly terminated. Defendant No. 1, on the other hand, alleged that the suit had really been brought at the instance of Defendant No. 2. Assuming it was so, if the Plaintiffs have a right, the fact that they were instigated to assert it by a third party who would profit by its successful assertion cannot put them out of Court. The allegation of neither party is, therefore, in any way material. But since the allegations were made, I may say that there is no evidence at all that Defendant No. 1 let out the premises for the purpose of subletting. Plaintiff No. 2 is not even sure that Defendant No. 2 is a tenant in respect of the premises and although he says he Knows Defendant No. 1 as the superior landlord, he adds that he himself became a sub-tenant of Defendant No. 2 with the cement of the latter and not that of Defendant No. 1. Plaintiff No. 3 says that he came to know of the understanding about sub-tenants from Defendant No. 2 after the institution of the present suit and even then what he came to know was that Defendant No. 2 had to take the permission of the landlord when he opened a boarding-house. Plaintiff No. 3 says that he came to know of the understanding about sub-tenants from Defendant No. 2 after the institution of the present suit and even then what he came to know was that Defendant No. 2 had to take the permission of the landlord when he opened a boarding-house. Yet the plaint already stated that the premises were let out for the purpose of sub-letting and running a "lodging house establishment." It is quite clear that the statement was falsely inserted in the plaint and the evidence of Plaintiff No. 3 in this regard is also false. The Plaintiffs had no means of knowing and did not come to know at any time that the purposes of the tenancy created in favour of Defendant No. 2 were sub-letting and establishment of a boarding-house. As regards the allegation of Defendant No. 1 that it is really Defendant No. 2 who is behind the suit, I believe it is partly true. Plaintiff No. 2 admitted that they were fighting the battle of Defendant No. 2, although I am not quite sure that he comprehended the full import of the question. Plaintiff No. 3 admitted that he had been paying visits to and discussing the suit with Defendant No. 2 although, according to both the witnesses, he had left the premises. I do not think, however, that the suit has been brought solely in the interest of Defendant No. 2. The Plaintiffs have sufficient interest in the success of the suit and it is not, in my view, any the less their suit, because Defendant No. 2 has apparently been, as might well be expected, guiding and helping them. 8. I may now proceed to consider the really substantial point in the case, the point of law raised by the third issue. Mr. Meyer who appeared for the Plaintiffs, referred to the terms of sec. 41 of the Presidency Small Cause Courts Act and certain decided cases and contended that where in a proceeding under sec. 41 only the tenant was made a party, an order for possession made against him alone could not bind or be effective against sub-tenants. Mr. Sen who appeared for Defendant No. 1 contended that sub-tenants would be bound by such an order and that the decisions relied on by Mr. Meyer did not establish the proposition contended for by him. 41 only the tenant was made a party, an order for possession made against him alone could not bind or be effective against sub-tenants. Mr. Sen who appeared for Defendant No. 1 contended that sub-tenants would be bound by such an order and that the decisions relied on by Mr. Meyer did not establish the proposition contended for by him. It was further urged by Mr. Sen that not only was the form of the present suit misconceived but no suit by the Plaintiffs was maintainable at all. 9. Logically, I should take up the second point first, for if it is decided in favour of the Defendants, no other question would arise. Since, however, the case may go further and I have to record my finding on the first point in any event, I would prefer to deal with that point in the first instance. It would also be more convenient to do so, inasmuch as it would avoid the citation of certain sections of the Act twice over. 10. Under the general law, it is now well-established that when a lessor has obtained a decree for ejectment against his lessee, a sub-lessee under the latter, although not a party to the suit, is a person "bound by the decree "within the meaning of Or. 21, r. 35 of the CPC and as such he is liable to be ejected in execution thereof, unless he has some independent title [see Sheikh Yusuf v. Jyotish Chandra Banerjee 35 C. W. N. 1182 (1931)]. To this proposition a corollary has been added in subsequent cases to the effect that the eviction of the, lessee must be based on a ground which determines the sub-lease as well [Sailendra Nath Bhattacharjee v. Bijan Lal Chakraverty 49 C. W. N. 133 (1941)]. But it has at the same time been held that termination of a lease by a valid notice to quit terminates all sub-leases created by the lessee and if a landlord obtains an ejectment decree against his tenant on such a ground, a mere sub-tenant has no defence against execution although he was not a party to the suit (ibid). It follows that if sec. 41 of the Presidency Small Cause Courts Act has laid down any contrary rule, it has departed from the general law. It follows that if sec. 41 of the Presidency Small Cause Courts Act has laid down any contrary rule, it has departed from the general law. Defendant No. 1, in contending that his decree binds the Plaintiff's as well, is not, therefore, contending for any exceptional proposition: it is the Plaintiffs who, in contending that the decree or order for possession does not bind them, are contending that the general rule does not apply to sec. 41 of the Presidency Small Cause Courts Act and that the section embodies a special rule of a more limited content. 11. Sec. 41 reads as follows:-- When any person has had possession of any immoveable property situate within the local limit) of the Small Cause Court's Jurisdiction and of which the annual value at a ra krent does not exceed two thousand rupees, as the tenant, or by permission of another person, or of some person through whom such other person claims. and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him thereinafter called the occupant refuse to deliver up such property in compliance with a request made to Lim in this behalf by such other persona. Such other person (hereinafter called the applicant may apply to the Small case Court for a summons against the occupant, calling upon him to show cause on a day therein appointed, why be should not deliver up the property. 12. Along with sec. 41 must be read sec. 43 which reads as follows:-- If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Cause Court is satisfied that be is entitled to apply u/s 41, be entitled to an order addressed to a bailiff of the Court, directing him to give possession of the property to the applicant on such day as the Court thinks fit to name In such order. Explanation :--If the occupant proves, that the tenancy" was created or permission grafted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section. 13. It will be noticed that sec. Explanation :--If the occupant proves, that the tenancy" was created or permission grafted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section. 13. It will be noticed that sec. 41 contemplates that a demand must first be made of the "occupant" to deliver up possession and if he refuses to comply with the demand, a summons may be applied for against him, i.e., the "occupant" so refusing. Sec. 43 provides that if the "occupant" does not appear in response to the summons and show cause to the contrary, an order shall issue to a bailiff of the Court, directing him to give possession of the property, According to sec. 41, "occupant" comprises a "tenant or occupier or any person holding under or by assignment from him" and the first paragraph of the section suggests that by " occupier" is meant a person occupying the property by permission of the applicant or any person through whom the applicant claims, that is to say, a licensee. The effect of the section, generally stated, therefore, is that the landlord may demand possession of a tenant or a licensee or a person holding under or by assignment from such tenant or licensee, as the case may be, and if the demand be not complied with, he may apply for summons against the person who failed to deliver possession on such demand. The application must be made against the person from whom possession was demanded. 14. In the present case, Defendant No. 1 asked Defendant No. 2 to quit and on his failure to do so, made an application for possession against him. So far there is no difficulty. What is contended is that the order for possession, good as it is against Defendant No. 2, cannot avail against the Plaintiffs who were not asked to give up possession and against whom it was not made. 15. Before taking up this contention for examination on its merits, it will be convenient to dispose of the cases relied on by Mr. Meyer which, in my opinion, do not assist him. 16. The first case cited was Peruri Surayanarayan v. W. I. Narasimha I. L. R. 49 Bom. 685 (1925). 15. Before taking up this contention for examination on its merits, it will be convenient to dispose of the cases relied on by Mr. Meyer which, in my opinion, do not assist him. 16. The first case cited was Peruri Surayanarayan v. W. I. Narasimha I. L. R. 49 Bom. 685 (1925). There, the tenant had inducted a sub-tenant, but on a notice to quit by the landlords, he himself vacated the premises. The subtenant refusing to do so, a proceeding under sec. 41 of the Presidency Small Cause Courts Act was started against both the tenant and the sub-tenant and the Small Cause Court Judge dismissed the application on the ground, as urged by the subtenant, that the premises were not reasonably and bona fide required by the Plaintiffs for their own use. Effect was thus given to a defence which the Bombay Rent Act made available to a tenant. On an application in revision, it was held by the High Court that a sub-tenant was not a tenant vis-a-vis the superior landlord and accordingly the Small Cause Court Judge had been in error in extending the benefit of the Rent Act to him. It was contended on behalf of the sub-tenant that as against him, the proceeding under sec. 41 was bad, but the High Court over-ruled the contention in the view that a sub-tenant was an "occupant" within the meaning of the section and could be proceeded against thereunder. I am unable to see what assistance the Plaintiffs can derive from this decision. The sub-tenant was in fact made a party in that case so that the present question did not arise and the High Court did not observe that if he had not been made a party, the order would not bind him. It was certainly held that a sub-tenant was a proper party, but no one contends that the Plaintiffs in the present case could not have been made parties, if they, on possession being demanded of them, had also refused to vacate. The Bombay case did not decide that a sub-tenant was a necessary party and the question of the effect of an order obtained against the tenant alone was neither raised, nor considered. 17. Even less helpful is the second case cited by M. Venkata Rao Vs. B. Subba Rao and Another, AIR 1940 Mad 700 . The Bombay case did not decide that a sub-tenant was a necessary party and the question of the effect of an order obtained against the tenant alone was neither raised, nor considered. 17. Even less helpful is the second case cited by M. Venkata Rao Vs. B. Subba Rao and Another, AIR 1940 Mad 700 . There, the Plaintiff, a sub-tenant of the second degree, brought a suit for compensation for trespass under sec. 47 of the Presidency "Small Cause Courts Act. The facts were that a certain temple leased out some land to Defendant No. 1 who, in his turn, granted a sub-lease to Defendant No. 2 who, again, granted a sub-lease to the Plaintiff, Defendant No. 2 applied under sec. 41 of the Presidency Small Cause Courts Act for recovery of possession of the land from- the Plaintiff and obtained a decree or order under sec. 43. The Plaintiff then brought a suit of the kind contemplated by sec. 47 of the Act which is a suit for compensation on account of trespass. Trespass means disturbance of possession without any right to cause such disturbance and sec, 46 provides that if at the time of applying for an order under sec, 43, the applicant had no right to the possession of the property, the application itself shall be deemed to be an act of trespass. After the Plaintiff bad filed a suit under sec. 47, the temple obtained an order under sec. 43 against Defendant No. 1 and the Plaintiff then amended his plaint so as to raise the contention that the sub-tenancy of Defendant No. 2 having disappeared along with the tenancy of Defendant No. 1, the former could no longer recover possession from the Plaintiff on the strength of the order obtained by him under sec. 43. The whole decision is a pronouncement on this contention and I am entirely unable to see what application it has to the facts of the present case. 43. The whole decision is a pronouncement on this contention and I am entirely unable to see what application it has to the facts of the present case. The Plaintiff's suit was dismissed by the trial Court and on appeal it was held by a single Judge of the Madras High Court that there were several reasons for which he could not succeed, first, because he could not question his lessor's title without going out of possession, secondly, because Defendant No. 2 had not yet been actually evicted, thirdly, because whether his sub-tenancy would really disappear remained to been seen, inasmuch as Defendant No. 1 had also filed a suit under sec. 47 which was pending and lastly, because the present case of the Plaintiff was inconsistent with his original case which was that all the tenancies were for three years. Mr. Meyer referred particularly to an observation that if the occupant proves that the tenancy of his lessor has determined and he has no right to possession, then that is sufficient cause why the Court should not pass an order for possession under sec, 43. But the learned Judge, in making that observation, was only quoting the explanation to sec. 43 which the Plaintiffs' Advocate had invoked and he went on to say that the rule held good only for the purposes of sec. 43 and could not be said to modify the ordinary law of landlord and tenant. Whether the learned Judge was right in saying that the explanation to sec. 43 would not apply to a suit under sec. 47 I need not pause to consider, for, I can see no possible application of the rule to the present case. If Defendant No. 2 had now been seeking to recover possession from the Plaintiffs under sec. 43, the explanation might be assailable to the Plaintiffs in a suit they might bring under sec. 47, but in the present case where it is Defendant No. 1, the superior landlord, who is seeking to evict them, I cannot see how it can be said that his title has determined. On the question involved in the present case, viz., whether an order for possession under sec. 43, made against a tenant binds a sub-tenant as well, the case says nothing at all and it is difficult to see why it was cited. 18. On the question involved in the present case, viz., whether an order for possession under sec. 43, made against a tenant binds a sub-tenant as well, the case says nothing at all and it is difficult to see why it was cited. 18. The third case relied on was Baggiammal v. Appadurai Granary 6 L. C. 722 (1910), again a decision of a single Judge of the Madras High Court. The judgment is extremely short and cryptic and the facts are not easy to ascertain. As far as I understand them, what happened was that a person other than the person against whom an order under sec. 43 was made, was ejected in execution of that order and the executing Court applying the provisions of the Civil Procedure Code, gave him relief, presumably under Or. 21, r. 101. It was urged before the High Court on an application in revision that the only remedy of the aggrieved person was by way of a suit under sec. 45 or 46 of the Act, but it was held that by reason of the provision contained in sec. 48, the Code had been rightly applied. The judgment does not give any indication as to whether the evicted person who was restored to possession was a sub-tenant or even an occupant within the meaning of sec. 43 and the decision is, therefore, of no assistance. If the evicted person was a sub-tenant, the decision undoubtedly favours the Plaintiffs, but it is a mere decision, giving no reasons, and so far as it turns on the general law which, it holds, was rightly applied, it is opposed to Division Bench rulings of this Court, e.g., Sheikh Yusuf v. Jyotish Chandra 35 C. W. N. 1182 (1931) and Sailendra Nath v. Bijan Lal 49 C. W. N. 133 (1941) as also the decision of Page, J., in Ramkissen v. Binjraj I. L. R. 60 Cal. 419 (1928). 19. The strongest reliance was, however, placed by Mr. Meyer on Hodson v. Walker (1872) 7 Exch. 55 a decision of the English Court of Exchequer under 19 & 20 Vict. (1856), C. 108, on which the Presidency Small Cause Courts Act appears to have partly been modelled. The English Act is an Act for the recovery of small debts and small tenements and has had predecessors and successors. Meyer on Hodson v. Walker (1872) 7 Exch. 55 a decision of the English Court of Exchequer under 19 & 20 Vict. (1856), C. 108, on which the Presidency Small Cause Courts Act appears to have partly been modelled. The English Act is an Act for the recovery of small debts and small tenements and has had predecessors and successors. It has since been replaced by the County Courts Act, 1888, which, in its turn, has been successively amended, but the Indian Act which was enacted in the year 1882, necessarily follows the English Act of 1856 which was the second County Courts Act. Mr. Meyer contended that the decision in Hodson v. Walker (1872) 7 Exch. 55 completely established the view put forward by him, whereas Mr. Sen urged that the decision, instead of supporting Mr. Meyer's contention, supported his. 20. The reasoning of the decision is bound up with references to various sections of the Act of 1856 and certain previous Acts and in order to understand the decision properly, it is necessary to refer first to those sections. And, in order to appreciate the bearing of the decision on the present question under the Indian Act, it is necessary to refer to the corresponding provisions of that Act as well. 21. Before the enactment of the first County Courts Act [9 & 10 Vict, (1846) C. 95], recovery of small tenements was provided for in 1 & 2 Vict, (1838) C. 74 which conferred jurisdiction on Justices of the Peace to entertain applications for recovery. It is not necessary to refer to the provisions of that Act, for they were substantially reproduced in the Act of 1846 which transferred the jurisdiction to the County Courts. The provisions of both the relevant Acts, the County Courts Act of 1846 (9 & 10 Vict, C. 95) and the Act of 1856 (19 & 20 Vict, C. 108) are couched in such extremely involved language that it will be convenient to refer only to their substance. The provisions of both the relevant Acts, the County Courts Act of 1846 (9 & 10 Vict, C. 95) and the Act of 1856 (19 & 20 Vict, C. 108) are couched in such extremely involved language that it will be convenient to refer only to their substance. Sec. 122 of the first Act provided that if the tenancy of a tenant of premises under a certain value was determined by a notice to quit and "such tenant, or if such tenant do not actually occupy the premises, or occupy only a part thereof, any person by whom the said or any part thereof shall be then occupied" neglected or refused to deliver up possession of the premises or the part he was occupying, the landlord might enter a plaint in the County Court and thereupon a summons would issue on the person so neglecting or refusing. It will be noticed that a summons could be had against the tenant only if he was actually occupying the premises or a part thereof and, in the latter case it could be had against the tenant and other persons in occupation in respect of portions respectively occupied by them. The section went on to provide that if the tenant or occupier did not appear in response to the summons and show cause to the contrary, the Court would be entitled, upon proof of the tenancy and its determination, to issue a warrant for delivery of possession, A proviso to the section laid down that if the landlord had no lawful right to possession of the premises at the time of "suing out," nothing in the section would protect him against an action. Sec. 124 provided that the Judge and the officers of the Court would not be liable to actions on account of the proceedings taken by them, while sec, 125 provided that if the landlord had a lawful right to possession at the time of his applying therefor, he would not be deemed to be trespasser by reason of any irregularity in the proceeding, but would only be liable for damages. Lastly, it was laid down by sec. Lastly, it was laid down by sec. 126 that if the person taking out a warrant of possession had no lawful right to possession at the time, the taking, out of the warrant would itself be deemed to be an act of trespass although no entry might have been made; and if the tenant or occupier bound himself with two sureties to sue such person without delay, execution of the warrant would be stayed pending the decision of such action for trespass and if the decision went in favour of the Plaintiff, it would supersede the warrant. 22. Sec. 122 of the Act of 1846 was repealed by the Act of 1856 and re-enacted as sec. 50 with certain changes. Sec. 50 of the new. Act provided that if, upon the determination of a tenancy, the "tenant or any person holding or claiming by, through or under him" neglected or refused to deliver up possession, the landlord might "enter a plaint, at his option, either against such tenant or against such person so neglecting or refusing" in the County Court and thereupon a summons would issue against the person proceeded against and in the absence of a good defence being made put, an order for possession would be made. It will be noticed that under sec. 50, the landlord might proceed against the tenant although he might not be in physical possession of any part of the premises at all. It was no longer necessary that in order that a proceeding might be launched against a tenant, he should be in occupation of at least a part of the premises, nor was it necessary that the proceeding should be against persons in actual occupation in respect of portions respectively occupied by them. The landlord might proceed at his will either against the tenant or against the occupier or occupiers and obtain an order for possession of the premises in either case. A further change made by sec. 50 was that the proviso to sec. The landlord might proceed at his will either against the tenant or against the occupier or occupiers and obtain an order for possession of the premises in either case. A further change made by sec. 50 was that the proviso to sec. 122 of the Act of 1846 which preserved the landlord's liability to an action if he proceeded without any lawful right to possession, was omitted Sec. 126 was also repealed and consequently no provision remained which made the mere taking out of a warrant of possession without a lawful right to do so an act of trespass, nor any provision by which an express right to bring an action for trespass was given to the person affected. Secs. 124 and 125 of the earlier Act, however, remained, Judges and officers of the Court continued to be immune from actions and the person taking out and executing a warrant of possession was not to be deemed a trespasser by reason of any irregularity in the proceedings, if he had a lawful right to possession. 23. The provisions of both the Acts were conditioned by the, basic circumstance that under sec. 58 of the earlier Act which was not repealed by the later, County Courts had no jurisdiction to try questions of title. An order for possession made by a County Court did not, therefore, conclude any such question. But a person's right to an order for possession would depend on his right to possession and, therefore, after a person had applied for or obtained a summary order, the tenant or occupier whose possession was disturbed or threatened, would be entitled to put the applicant's right to possession to trial by bringing an action in a superior Court. The Act of 1846 expressly provided for such an action and prescribed the form of the action to be an action for trespass. By the Act of 1856 the express provision was removed. County Courts have subsequently been empowered to try questions of title as respects holdings of a certain limited value, but with that position we are not here concerned. By reason of the provisions of sec. 19 of the Presidency Small Cause Courts Act, the position of a Presidency Small Cause Court is the same as that of the English County Courts under the Acts of 1846 and 1856. 24. In Hodson v. Walker (1872) 7 Exch. By reason of the provisions of sec. 19 of the Presidency Small Cause Courts Act, the position of a Presidency Small Cause Court is the same as that of the English County Courts under the Acts of 1846 and 1856. 24. In Hodson v. Walker (1872) 7 Exch. 55 the facts were as follows. One Walker who was the owner of a certain shed let it out to one Usher as a yearly tenant and after the tenancy had run for about 18 years, determined it by a notice to quit. In the meantime, Usher had let out the shed to one Hodson for a term of nine years and the latter was apparently holding over after the expiry of his term. In due course Walker commenced a proceeding; against Usher in the Westmoreland County Court under sec. 50 of 19 & 20 Vict. C. 108, but did not make Hodson a party. He obtained judgment and an order directing possession to be given within fourteen days, but as the order was not obeyed, he took out a warrant. In execution of that warrant, the High bailiff of the County Court delivered possession by turning out Hodson. The latter then brought an action for trespass but it was dismissed by Martin, B., in the view that the action did not lie and the only remedy of the Plaintiff was a suit in ejectment. Thereupon Hodson obtained a rule for a new trial which was heard by a Court composed of Piggot, B., Channel, B. and Martin, B., himself. Martin, B. adhered to his view that no action for trespass lay but the other two Judges held that such an action did lie and the Court, by a majority, ordered a new trial. 25. The effect of the decision, however, was not to hold that since Walker had not made Hodson a party to the proceeding, he was not entitled to execute against him the order he had obtained against Usher, nor that in entering upon the shed in the possession of Hodson in execution of the order, he had committed an act of trespass. All that was held was that as regards Walker's right to possession, the order for possession made by the County Court was not conclusive against Hodson, as it was not conclusive even against Usher, and that the former was entitled to maintain an action for trespass, whatever the decision in such action might be. It was contended before the Court that since sec. 50 of the Act of 1856 had omitted the proviso to sec, 122 of the Act of 1846 and since sec. 126 of the earlier Act had been repealed altogether, there was no longer any right to bring an action for trespass with respect to any act of taking possession under an order of a County Court This contention was repelled and it was held that neither the omission to re-enact the proviso, nor the repeal of sec. 122 could have the effect of taking away the right of bringing an action for trespass against the landlord which could always be brought to show that he had entered upon the property without any lawful right to possession. The reason was that the right to recover possession under a warrant of a County Court was limited by the Act to cases where the landlord had a lawful right to possession and if he procured a warrant and took possession without such right, the entry would be a trespass and actionable as such, although there might be no express provision authorising such action. 26. Under the Presidency Small Cause Courts Act, sec. 4I, as has been seen, authorises the landlord to apply for a summons against any "tenant or occupier or any person holding under or by assignment from him" who has refused to deliver up the property and sec. 43 entitles him to an order for possession against the person summoned, if the Court is satisfied that he is entitled to apply under sec. 41. Sec. 122 of the English Act of 1846 and sec. 50 of the Act of 1856 have, generally speaking, their counter-parts in these two sections of the Indian Act. Sec. 44 of the Indian Act corresponds to sec. 124 of the English Act of 1846 and provides for the immunity of Judges and officers, while sec. 45 corresponds to sec. Sec. 122 of the English Act of 1846 and sec. 50 of the Act of 1856 have, generally speaking, their counter-parts in these two sections of the Indian Act. Sec. 44 of the Indian Act corresponds to sec. 124 of the English Act of 1846 and provides for the immunity of Judges and officers, while sec. 45 corresponds to sec. 125 and provides that no irregularity in the proceeding for taking possession will make the landlord a trespasser, if he was entitled to possession. In the English Act of 1856, the two provisions are combined in sec, 60. Sec. 46 of the Indian Act corresponds to the proviso to sec. 122 of the English Act of 1846 which was omitted in the Act of 1856 and provides that if the landlord was not entitled to the possession of the property at the time of his application, nothing contained in the Act shall protect him from a suit and the application itself shall be deemed to be an act of trespass, although no possession may have been taken thereunder. Sec. 47 of the Indian Act provides for a stay of proceedings in the Small Cause Court if the occupant gives security to bring a suit for trespass in the High Court and further provides that a decree obtained in such suit against the applicant for possession, shall supersede the order, if any, made by the Small Cause Court under sec. 43. This provision corresponds to sec. 126 of the English Act of 1846 which was repealed by the Act of 1856. Lastly, sec. 49 of the Indian Act provides that recovery of possession under the Act shall not bar a title suit in the High Court. 27. Reverting now to Hodson v. Walker (1872) 7 Exch. 55, it is clear that if Mr. Meyer required authority to show that his clients were entitled to question the legality of the warrant of possession by bringing a suit, the decision would be one such authority. But no authority is in fact required, inasmuch as the Indian Act expressly provides both for a suit for trespass and a title suit. The decision, however, does not lay down the proposition which Mr. But no authority is in fact required, inasmuch as the Indian Act expressly provides both for a suit for trespass and a title suit. The decision, however, does not lay down the proposition which Mr. Meyer required to establish, viz., a warrant of possession obtained against a tenant cannot be executed against a sub-tenant and that an entry under such a warrant upon, property in the possession of a sub-tenant would be an act of trespass. Mr. Meyer relied on certain passages in the judgment of Channel, B. which, in my view, are rather against him than in his favour. The first passage runs as follows:-- The landlord may at his option, enter a plaint enter against the tenant or against any person claiming under him and refusing to give up possession; but it is only the person against whom he elects to proceed who is 'defendant' in the proceedings, and it is only against the 'defendant' that an order can be made, 28. The learned Baron, however, proceeds to add "although, if the order is disobeyed, a warrant may issue under which possession of the premises may be obtained whether the 'Defendant' is at the time in possession of them or not." It is thus clear that possession could be obtained in execution of the warrant even when a third party was in occupation of the premises. 29. The next passage on which Mr. Meyer relied reads as follows:-- It is of course most improbable that the legislature should enact that a man should be turned out of possession under proceedings to which he was not a party and of which he had no notice and that, when so turned out, he should be bound by the proceedings and not able to dispute the title of the person who has set them in motion. 30. What, in my view, is regarded as improbable in this passage is not that a person should be turned out of possession in execution of an order against another, but that the person, so ejected, should not be able to question the right of the evictor by a suit. Nothing is said in this passage as to the ground on which such right may be questioned. Nothing is said in this passage as to the ground on which such right may be questioned. That is said in a passage immediately following where the learned Baron observes that although the Act authorises the landlord to go against the tenant instead of going against the person in actual possession, the order obtained by him is not conclusive; against the person against whom he has elected not to proceed, as it is not conclusive even as against the person impleaded, and I think when he has so obtained possession, he is as liable to an action of trespass as if he had obtained possession in any other manner, that is to say, he is liable if he has not in fact a right to the possession and is not liable if he has. 31. This passage makes it perfectly clear that even according to Channel, B., although a sub-tenant, ejected in execution of a warrant obtained against the tenant, may bring a suit for trespass, yet if it is proved in such suit that the landlord had a right to possession, he will not be held liable. The learned Baron proceeded to observe that on the facts of the case, Hodson had little hope of success in his suit. Hodson v. Walker (1872) 7 Exch. 55 is thus of no assistance to Mr. Meyer, but rather goes against him. 32. If the provisions of the Presidency Small Cause Courts Act are in pari materia with those of the English Act of 1856, the decision is an authority in favour of Defendant No. 1 in the present case. At first sight it might appear that there is a distinction between the two Acts, but the distinction is only apparent and no more than a distinction of language. At first sight it might appear that there is a distinction between the two Acts, but the distinction is only apparent and no more than a distinction of language. Sec. 50 of the English Act uses somewhat elaborate phraseology and provides that where a tenant or a person holding or claiming by, through or under him, neglects or refuses to deliver up possession, the landlord may enter a plaint "either against such tenant or such person so neglecting or refusing." Sec. 41 of the Indian Act compresses the same provision into fewer words and provides that where the "tenant or occupier or any person holding under or by assignment from him," all called thereafter by the general name "occupant," refuses to deliver up the property, the landlord may apply for a summons against "the occupant." If for "occupant" is read the definition given in the earlier part of the section, the section, leaving aside the case of licensees, will be found to provide that the landlord may proceed against either the tenant or the person claiming through or under him who may be in occupation. The only qualification is that he must proceed against the particular party who was asked to deliver up possession and has refused to comply. The provision in the English Act is to the same effect and the words "so neglecting and refusing" in the phrase "either against such tenant or against such person so neglecting and refusing" appear to me to qualify both "such tenant," and "such person." As under the English Act, so under the Indian, the claim to an order for possession rests on a right to possession and Hodson v. Walker (1872) 7 Exch. 55 is, in my view, good authority for the proposition that if the landlord has such right, he cannot be held liable in an action for trespass on the ground that he obtained a warrant of possession against the tenant but executed it against a sub-tenant. Under both the Indian and the English Acts, the warrant of possession contemplated is a, warrant addressed to the bailiff directing him to give possession of the premises. Under both the Indian and the English Acts, the warrant of possession contemplated is a, warrant addressed to the bailiff directing him to give possession of the premises. If the, proceeding is valid, as a proceeding against a tenant is although there may be a sub-tenant on the premises, possession of the premises in execution of an order obtained in such a proceeding can lawfully be given by the bailiff and taken by the landlord. 33. Mr. Sen contended that if such were not the law and if persons inducted by the tenant or living on the premises with his permission were not bound by an order against him, an extraordinary position would result and the tenant would be able to thwart the landlord by setting up against him not only his sub-tenants but also his wife and his children one after another. We have, however, to construe the statute and if it has limited the effect of an order made under it to the person against whom it is made, effect must be given to the law, whatever the anomaly or hardship caused. But no apprehension need be felt about resistance by the wife and children of the tenant. As pointed out in the case of Artizans Labourers and General Dwellings Co., Ltd. v. Clifford 1918 2 K. B. 213 the wife of a tenant holds, if she does at all, in the right of the tenant and not under some right in herself. The decision was given under the County Courts Act of 1888, but the provisions of sec. 138 of that Act are virtually the same as those of sec. 50 of the Act of 1856 and although the Court only construed the words "by, through or under," the observations it made as to the status of a wife are of general application. But the consideration which decides the question as to the effect of an order made under Sec. 43 of the Indian Act is that although the order is a summary order, there is nothing to indicate that the Legislature intended to depart from the general principle that an ejectment order made against a tenant binds the sub-tenant, unless the latter has an independent right. It is noteworthy that sec. It is noteworthy that sec. 46 of the Act speaks of a suit by "any person aggrieved" and makes the mere application by the landlord, when he is not entitled to possession, an act of trespass and actionable as such. Clearly, so far as this section is concerned, a subtenant, being obviously a person aggrieved, may bring a suit, although his possession may not yet have been disturbed and if the order was not intended to affect any one other than the person impleaded, it is not easy to understand why a suit by "any person aggrieved" is contemplated or provided for. It is true that the Small Cause Court cannot try any question of title and the order it makes is a, summary order. Vet, the intention of the Act does not appear to be merely to provide that a landlord may demand possession of and then proceed against any one of the various classes of "occupant" concerned with the premises, but once he has made his choice, the order obtained by him will bind only the person against whom it is obtained. That view of the Act will deprive the landlord's option of all practical value and render the order for possession perfectly useless. The scheme of the Act appears father to be that it divides an ordinary suit for ejectment into two parts, one being concerned with the order for possession and the other with the question of title. To the Small Cause Court is given the power to make an order for possession and make it in a summary way, but if the persons affected wish to raise any question of title or of right to possession, liberty is given to them to do so by means of a suit, which may be either an action for trespass during the pendency of the proceedings in the Small Cause Court or a title fait thereafter Unless, however, such a suit is brought and the order for possession superseded by the decree passed therein, the order will have the ordinary effect and when made against a tenant, will bind the sub-tenant as well. This view is warranted by the language of the Act so far as it goes and since the Act says nothing as to the effect of an order for possession, there is no reason why the principle of the general law should not apply. This view is warranted by the language of the Act so far as it goes and since the Act says nothing as to the effect of an order for possession, there is no reason why the principle of the general law should not apply. Giving the matter the best consideration I can, I have reached the conclusion that an order for possession made against a tenant under sec, 43 of the presidency Small Cause Court Act binds the sub-tenant as well and so can be executed against him. The third issue in the suit must, therefore, be answered against the Plaintiff and in favour of the Defendant No. 1. 34. The first issue concerns the frame of the suit and the right of the Plaintiffs to question the order by a separate suit at all. Reference was made by Mr. Sen to the decision of Mitter and Sharpe, JJ., in the case of Messrs. Jamini Kanta Harendra Lal Saha v. Bonomali Dey Unreported A. O. P. No. 48 of 1046, dated 7th February, 1946 and it was contended by him that a sub-tenant being a representative of the tenant within the meaning of sec. 47 of the Code, as held by that decision, the Plaintiffs were not entitled to bring a suit and their only remedy lay in an objection under sec. 47 in the execution proceedings. I am unable to accept that contention in its absolute form, but so far as the present suit is concerned it appears to me to be correct. Sitting is a Court of first instance, J am bound by the decision of the Court of Appeal that a sub-tenant is a representative of the tenant for the purposes of sec. 47 of the Code and it is also true that sec. 48 of the Presidency Small Cause Courts Act makes the Code generally applicable to all proceedings under Chapter VII. Also, sec. 47 of the Code has been specifically extended by this Court to the Calcutta Small Cause Court, But a suit for compensation for trespass and a title suit are expressly authorised by the Act and sec. 47 of the Code cannot possibly be a bar to such suits, if brought by persons who are entitled to bring them under the Act. 47 of the Code cannot possibly be a bar to such suits, if brought by persons who are entitled to bring them under the Act. The present suit, however, which is a Suit for a declaration and an injunction, is neither a suit for compensation for trespass, nor a title suit. It is again to be noticed that sec. 47 of the Act only authorises a suit by "the occupant" when an application has been made under sec. 41 and although the term "occupant" as explained in sec. 41, comprises various classes of persons, it will be clear from an examination of secs. 41 to 47 that "the occupant" in the last mentioned section is the particular occupant against whom an application has been made under sec. 41 and who has been summoned to appear under sec. 42. So it was held by the learned Chief Justice and myself in the case of Gangaram Bhar v. Santosh Kumar Mitra Unreported : Civil Rule No. 768 of 1948, decided on the August, 1948 for reasons which I need not repeat. Accordingly, when the application is against the tenant the sub-tenant cannot intervene under sec. 47 and bring a suit, as contemplated by that section. It follows that even if a suit of the present kind could be treated as virtually a suit for trespass, as appears to have been done by the Madras High Court in the case of Abdul Rahim Sahib v. Gangathara Iyer 37 I. C. 436 (1916) the Plaintiffs, who were not the persons proceeded against under sec." 41, cannot maintain the present suit as a suit under sec. 47, Nor can they maintain the suit as a title suit under sec. 49 or otherwise, in view of their status as sub-tenants, the frame of the suit and the stage at which the suit was brought. After a proceeding has been initiated against the tenant under sec. 41 and before an order for possession under sec. 43 has been made, even a sub-tenant may perhaps maintain a suit in the High Court for a declaration that the landlord is not at all entitled to the possession of the premises and for an injunction restraining him from proceeding with the application Such a suit may be taken to be one authorised by sec. 46 which does not specify hi any particular kind of suit. 46 which does not specify hi any particular kind of suit. Or it may be taken to be a suit under the general law which the sub-tenant is entitled to bring even in the absence of any specific provision, on the principles laid down in Hodson v. Walker (1872) 7 Exch. 55. Again, a suit relating to the title to the premises can perhaps be brought by the sub-tenant any time. But after an order for possession, has been made against the tenant a sub-tenant cannot maintain a suit of the present character in order to avert execution of the order against him. He is a representative of the tenant and any question relating to the execution of the order must be agitated in a proceeding under sec. 47 of the Code and not by a separate suit, unless such suit has been specially authorised by the Act. What has been put in issue in the present suit is not the landlord's right to possession as such, nor his title, but only his right to recover possession from the sub-tenants in execution of an order obtained against the tenant Such a suit is not one specially authorised by either sec. 47 or sec. 49, apart from the fact that a sub-tenant cannot maintain a suit under sec. 47 when the landlord's application is against the tenant. What is justiciable in a suit under sec. 47 is the landlord's right to possession of the premises or at most his right to recover possession from the person against whom he has proceeded and what is contemplated by sec. 49 is a suit relating to the title to the property. Question like the executability of the order a third party who claims not to be bound by it but who does not set up any independent right against the landlord, are outside the ambit of either type of suit, Any such question must be agitated under sec. 47 of the Code, if the person raising it is a representative of the tenant. 47 of the Code, if the person raising it is a representative of the tenant. The Plaintiffs in the present suit certainly alleged that Defendant No. 1 let out the premises to Defendant No. 2 for the purpose of sub-letting and that he was aware of the existence of sub-tenants on the premises but that was not pleading any privity of contract between Defendant No. 1 and the sub-tenants which would affect the former's right to possession after the determination of the tenancy. In my opinion, the question raised by the present suit is not within the purview of either of the two types of suit authorised respectively by secs. 47 and. 49 of the Act, nor is the suit maintainable, by the Plaintiffs as a suit under sec. 47 and even if the question be one within the purview of a suit under sec. 46, which I doubt, it being a question relating to the execution of an order which has already been passed and the Plaintiffs being the representatives of the tenant judgment-debtor, the suit is barred under sec. 47 of the Code of Civil Procedure. Accordingly, the first issue must also be answered against the Plaintiffs. In the result, the suit fails and is dismissed with costs. No orders on the Motion are necessary.