JUDGMENT Das, J. - The following two questions have been referred to me under Clause 36 of the Letters Patent: (i) Whether the suit as framed was maintainable. (ii) If the suit was maintainable, whether the Plaintiffs were entitled to the relief claimed, in other words, whether they were bound by the decree or order passed against their lessor in the Small Causes Court, and whether they could be lawfully evicted thereunder. 2. I proceed to deal with the two points in the above order. 3. The facts of the case are that the Defendant No. 1, Purna Chandra Mallik, is the owner of premises No. 50, College Street, Calcutta. The Defendant No. 2. Niharranjan Mukherji, was a monthly tenant of the major portion of the premises. Defendant No. 2 sublet one room to each of the Plaintiffs. Defendant No. 1 served a notice to quit on Defendant No. 2 determining the tenancy and obtained the permission of the Rent Controller to institute a suit for ejectment of Defendant No. 2, Thereafter, on June 18, 1947, Defendant No. 1 instituted in the Presidency Small Cause Court a proceeding u/s 41 of the Presidency Small Cause Courts Act (hereinafter called the Act) against Defendant No. 2 only. Summons was duly served on Defendant No. 2; Defendant No. 2 did not appear and, on July 16, 1947, an ex parte order was made u/s 43 of the Act, and Defendant No. 2 was directed to give up possession by August 20, 1947. Time was extended from time to time and ultimately it was extended to January 28, 1948. On this day, the Plaintiffs filed the present suit, being No. 3266 of 1947 in the ordinary original jurisdiction of this Court. 4. The prayers made in the plaint are as follows: (a) a declaration that the said decree, dated July 16 1947 passed by the said Court of Small Causes, Calcutta, in the said Suit No. 3266 of 1947 is invalid and inoperative and not binding on the Plaintiffs; (b) an injunction restraining the Defendant Purna Chandra Mallik, his servants and agents from interfering with the Plaintiffs' possession of the respective Potions of the said premises in their occupation or taking any steps to evict the plaintins from the said premises; (c) costs. 5. The only relevant allegations made in the plaint are those contained in paras. 5. The only relevant allegations made in the plaint are those contained in paras. (9) and (10) of the plaint which run as follows: (9) The Plaintiffs had no notice or knowledge of the said suit until January 5, 1948, when the Defendant started proceedings in execution. (10) The palintiffs submit that the Plaintiffs, being the actual occupants in respect of portions of the said premises, the Defendant Purna Chandra Mallik was. not entitled to obtain a decree for possession from the Presidency Court of Small Causes under the provisions of the Presidency Small Cause Courts Act without service on the Plaintiffs of a notice or summons. 6. The Plaintiffs did not dispute the fact that the tenancy of the Defendant was validly determined by the service of a notice to quit the premises. 7. The only ground on which the decree of the Presidency Small Cause Court was said not to be binding was that the same was obtained without service of a notice or summons on the Plaintiffs who were sub-tenants in respect of portions of the premises. 8. I shall now refer to the material provisions of the Act. 9. Section 19(d) of the Act inter alia precludes the Presidency Small Cause Courts from exercising jurisdiction in suits for the recovery of immoveable property. Chapter VII of Act is an exception to Section 19(d) of the Act and empowers the court to entertain certain proceedings for recovery of possession of immoveable property, which are set forth in Section 41. 10. Under Rule 107 of the rules of practice of the Presidency Small Cause Courts, proceedings u/s 41 of the Act are to be treated as suits. 11. Section 48 requires the court to follow the procedure prescribed for a court of first instance by the Code of Civil Procedure, in all proceedings under Chap. VII. 12. 10. Under Rule 107 of the rules of practice of the Presidency Small Cause Courts, proceedings u/s 41 of the Act are to be treated as suits. 11. Section 48 requires the court to follow the procedure prescribed for a court of first instance by the Code of Civil Procedure, in all proceedings under Chap. VII. 12. Section 41 runs as follows: When any person has had possession of any immoveable property situate will thin the local limits of the Small Cause Court's jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission of another person, or of some person through whom such 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 (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the Applicant) may apply to the Small Causes Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not deliver up the property. 13. Section 43 provides that if the occupant does not appear or shew cause, the Applicant shall, if the court is satisfied that he is entitled to apply u/s 41, be entitled to an order addressed to a bailiff directing him to give possession of the property. 14. The explanation appended to the section states that the occupant may shew sufficient cause by proving that the title of the Applicant (the landlord or licensor) has determined. 15. Section 44 confers an immunity to the bailiff, Judge or other officers concerned. 16. Section 45 states that if there be any defect, error, or irregularity in the mode of proceeding to obtain possession, "any person aggrieved" may sue the Applicant or any person acting on his behalf for damages but not for trespass if the Applicant was not entitled to possession. 17. Section 46 lays down that "any person deeming himself "aggrieved" by the Applicant's taking of possession under Chap. VII may sue the Applicant if the Applicant was not entitled to possession. In the latter event, the. filing of the application u/s 41 is an act of trespass against the occupant. 18. 17. Section 46 lays down that "any person deeming himself "aggrieved" by the Applicant's taking of possession under Chap. VII may sue the Applicant if the Applicant was not entitled to possession. In the latter event, the. filing of the application u/s 41 is an act of trespass against the occupant. 18. Section 47 states that if the occupant furnishes security he may obtain a stay of the proceedings u/s 41 to enable him to file a suit in the High Court for compensation for trespass, and if he obtains a decree therein, such decree shall supersede the order (if any) made u/s 43. 19. Section 49 provides that recovery of possession of immoveable property under Chap. VII shall be no bar to the institution of a suit in the High Court for "trying the title thereto". 20. It would thus appear that Chap. VII creates a special jurisdiction and provides for a speedy recovery of possession of premises of small value. The proceedings u/s 41 entitle the landlord or licensor to recover possession against a certain class of persons, called occupants. The inquiry u/s 43 is a limited one. The section does not say that all persons who come within the category of occupants must be joined. It is an enabling section and leaves it open to the Applicant to choose the person whom he shall proceed against. The opening words of Section 41 speak of possession of a tenant or licensee. The request to deliver possession may be made to any one of the occupants and not necessarily from the occupant in actual occupation and the proceedings may be started against the particular occupant from whom possession was demanded. It may be pointed out that the Victorian Statute, 1858 (18 and 19 Vic, c. 108), which was then in force in England and on which the Act is modelled, gave an option to the landlord to select the person against whom he would proceed. 21. Before an order u/s 43 can be made, the Court has, however, to be satisfied that the Applicant was entitled to apply u/s 41, viz.: (i) the original entry into possession of the premises was as a tenant or licensee; (ii) the tenancy or licensee has been determined or withdrawn; (iii) a request was made to the occupant to deliver possession. 22. 22. If cause is shewn on the ground that the title of the Applicant had already determined or otherwise, the validity of the cause shewn has also to be investigated: See Purusottam Lal Sarogi Vs. Mt. Hawi Bai, AIR 1947 Cal 401 . 23. An order u/s 43, therefore, necessarily implies an adjudication by the court on these matters, and must be taken to be conclusive so far as the party impleaded is concerned; subject of course, to the result of a suit under as. 46, 47, 49. 24. I may add that in the case of Gangaram Bharh v. Santosh Kumar Mitra ILR (1949) 2 Cal. 257, a Division Bench of this Court held that Section 47 is available only to the occupant who was made a Defendant in the proceedings u/s 41 of the Act. In my opinion, the expression "person aggrieved" includes occupants and strangers affected by the order. 25. Thus, Sections 45, 46, 47, 49 amply safeguard the rights of persons aggrieved by the order u/s 43 including occupants, whether impleaded or not, and entitle them to have the question of the title of the Applicant or the Applicant's right to possession adjudicated upon in a superior Court. 26. As the Act has given a right of suit in certain specified cases as provided by Sections 45, 46, 47, 49 of the Act, such remedy is exclusive and no other form of suit is permissible. 27. The above view is supported by a decision of the Madras High Court in the case of Abdul Rahim v. P. Gangathara Aiyar AIR (1918) (Mad.) 757. 28. In the present case, the suit is not framed under any of the said sections and is not maintainable. 29. The further ground given by Chakravartti J. that the suit is barred u/s 47 of the CPC need not be gone into. In my opinion, the suit as framed was not maintainable. The first question is answered in the negative. 30. I shall now deal with the second point. 31. I have already held that the proceedings u/s 41 of the Act may be directed only against the tenant and that it is not necessary to implead a sub-tenant or other persons who may come within the category of occupants. 32. The first question is answered in the negative. 30. I shall now deal with the second point. 31. I have already held that the proceedings u/s 41 of the Act may be directed only against the tenant and that it is not necessary to implead a sub-tenant or other persons who may come within the category of occupants. 32. If the tenant alone is impleaded, as in the present case, the order u/s 43 and the warrant issued to the bailiff can be executed against him and is. binding on him. Section 41 indicates that the summons would call upon the Defendant "to deliver up the property" and the order u/s 43 and the warrant issued to the bailiff empowers the bailiff to deliver possession of "the property". It is physical possession of the premises which is contemplated. 33. Mr. Sen referred to the following passage from the judgment of Greer J. in the case of Gidden v. Mills (1925) 2 K.B., 713, 724: It is impossible to read Section 138 of the County Courts Act, 1888, without seeing that an action for possession under that Act is an action for physical possession. 34. In the case of Haskins v. Lewis (1931) 2 K.B. 1, 16, the same learned Judge expressed himself thus: The difficulty that I felt in Gidden v. Mills (supra) with regard to the question whether an order can be made for possession of the whole of the premises I still feel, because whether the action in the county court is an action for ejectment u/s 59, or an action for possession u/s 138 of the County Courts Act, 1888, it is in my opinion an action claiming the right to be put into physical possession of the premises, and the warrant which is provided for under the Statutory Rules of the county court is a warrant to the officer of the court to put the Plaintiff into possession of the premises in question. That means, surely, to put him into physical possession of the whole of the premises. 35. Mr. Meyer contends that the Act of 1888 differs from the Act of 1858 on which the Presidency Small Cause Court is modelled, but as I shall shew later on, the two Acts are similar on this point. 36. That means, surely, to put him into physical possession of the whole of the premises. 35. Mr. Meyer contends that the Act of 1888 differs from the Act of 1858 on which the Presidency Small Cause Court is modelled, but as I shall shew later on, the two Acts are similar on this point. 36. Persons aggrieved by the order or sought to be dispossessed or in fact dispossessed may resort to the remedies given by the Act or by the Code of Civil Procedure, as the case may be. 37. Till the order or the warrant is superseded or its operation stayed by appropriate proceedings, it remains effective and the tenant or his privies can be successfully turned out of possession. 38. In the present case, no suit or proceeding as contemplated by Sections 46, 47 or 49 of the Act has been taken and the order u/s 43 passed against the tenant is, in the facts of this case, binding on the tenant and his privies, i.e., a sub-tenant. It is not disputed that a notice to quit served on the tenant, which determines the tenancy u/s 111(h) of the Transfer of Property Act, also determines all sub-tenancies. 39. As already stated the warrant to the bailiff entitles the bailiff to turn out the tenant from the premises. In my opinion, a sub-tenant, whose interest has also determined, is also bound by the order u/s 43 and the bailiff can also turn him out of the premises. 40. Such a result follows from the legal relationship of the tenant and the sub-tenant vis a vis the landlord. A sub-lease creates no privities of contract between the sub-tenant and the landlord, even covenants running with the land, e.g., a convenant to pay rent is unenforceable by the landlord against the sub-lessee. See Piatt on Lease, Vol. I, pp. 102-103. 41. The landlord, in many cases, knows nothing about sub-tenants of his lessee, and if the landlord gives due notice to his lessee and resorts to legal measures (e.g., a proceeding u/s 41 of the Act) to evict him, it would be hard on him to be' asked to begin proceedings over again against the sub-tenant. I, pp. 102-103. 41. The landlord, in many cases, knows nothing about sub-tenants of his lessee, and if the landlord gives due notice to his lessee and resorts to legal measures (e.g., a proceeding u/s 41 of the Act) to evict him, it would be hard on him to be' asked to begin proceedings over again against the sub-tenant. The principle underlying the above rule was thus stated by Mukherjea J. in Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarti (1944) 49 C.W.N. 133, 141: Now, it is a settled principle of law that a judgment inter parties can bind only those who are parties or privies to it. In the law of estoppel, as Bigelow points out, one person can become a privy to another (i) by succeeding to the position of that other as regards the subject of estoppel and (ii) by holding in subordination to that other... if the interest of the subordinate holder is of such a character that it is entirely dependent on that of the superior holder and automatically comes to an end as soon as the superior interest is extinguished, the subordinate holder would be a privy to the judgment obtained against the superior holder even though, he was not a party to the action. 42. Sinha J. was of opinion that the order u/s 43 and the writ to the bailiff was binding on the tenant and sub-tenants deriving title since the action but not on sub-tenants whose sub-tenancy was created before the action. This view overlooks the last part of the observation of Mukherjea J. quoted above. 43. It, may also be pointed out that the proceedings u/s 41 of the Act are not of a summary character. They are treated as suits and the procedure to be followed are regulated by the Code of Civil Procedure, only the scope of inquiry is limited, viz., proof of the tenancy and its determination. This fact alone ought not to take away from the binding character of the order. 44. In places outside the local limits of the ordinary original civil jurisdiction of the High Court, suits for ejectment fall under two heads, viz., suits for possession based on title and suit for ejectment between landlords and tenants. This fact alone ought not to take away from the binding character of the order. 44. In places outside the local limits of the ordinary original civil jurisdiction of the High Court, suits for ejectment fall under two heads, viz., suits for possession based on title and suit for ejectment between landlords and tenants. The former class of suits is dealt with in Section 7v of the Court-fees Act and the latter class of suits in Section 7xi (cc) of the same Act. In the latter class of suits, the court decides only the question of relationship of landlord and tenant and of the determination of the tenancy and does not decide the title of the Plaintiff: Govinda Kumar Sur v. Mohini Mohan Sen (1929) 33 C.W.N. 769. Even, as in the latter class of suits, the decree passed is binding on the sub-tenant (ibid.). 45. It is true that Order XXI, Rule 35 of the CPC expressly provides that the judgment-debtor and any person bound by the decree who refuses to vacate, may be turned out of possession. It is also true that Order XXI, Rule 35 has not been expressly made applicable to order for possession passed under, the Act. Sections 41 to 43 of the Act, however, merely lay down the procedure to be adopted by the Presidency Small Cause Court in applications for recovery of possession of property. The Act does not purport to lay down any law modifying the ordinary law with regard to relations between landlords and tenants. The effect of the order u/s 43 has to be appraised on the general principles of the law of estoppel between landlords and tenants and these principles are that the order for possession passed against a tenant is binding on the sub-tenant and may be executed against him, in cases where the eviction of the tenant is based on a ground which determines the sub-tenancy as well. 46. Mr. Meyer, however, contends that Chap. VII of the Act is modelled on the Victorian Statute [(1856), 18 and 19 Vic, c. 109], which was then in force in England, and Section 41 of the Act should receive; the same construction as the analogous section of the said Victorian Statute. Reliance is placed on the case of Hodson V. Walker (1872) L.R. 7 Ex. 55. 47. VII of the Act is modelled on the Victorian Statute [(1856), 18 and 19 Vic, c. 109], which was then in force in England, and Section 41 of the Act should receive; the same construction as the analogous section of the said Victorian Statute. Reliance is placed on the case of Hodson V. Walker (1872) L.R. 7 Ex. 55. 47. In order to appreciate the effect of this decision, it is necessary to consider the relevant Victorian Statutes. The earliest one on this subject is (1838) 1 and 2 Vic, c. 74. 48. It is styled as "An Act to facilitate the Recovery of "Possession of Tenement after Due Determination of the "Tenancy". 49. The preamble of the Act states the object to be-- To provide for the more speedy and effective recovery of the possession of premises unlawfully held over after the determination of the tenancy. 50. Section 1 provided that the landlord on proof of "the holding "and of the end or other determination of the tenancy" and of his derivative title, if any, and "of service of the notice, and of "neglect or refusal of the tenant" and, if any person is in possession of a part of the premises, of such persons to give up possession, apply to the Justices of Peace and obtain a writ addressed to the constables and Peace Officers to enter into the premises and give possession of the same. 51. The proviso to the section preserved the right of action of the tenant or occupier in respect of the entry by the landlord where the latter had not "lawful right to the possession of the "premises". 52. This statute was followed by (1846) 9 and 10 Vic. c. 95, described as an Act for the more easy recovery of small debts and demands in England. Section 3 provided that courts created by the Act will have the same jurisdiction as county courts. Section 58 defined the jurisdiction of courts under the Act. It provided that-- The court shall not have cognizance of any action of ejectment or in which the title to any corporal or imcorporal hereditament or to any title, fair, market or franchise shall be in question. 53. Section 122 and the proviso thereto substantially reproduced B. 1 of (1838) 1 and 2 Vic. c. 74. 54. It provided that-- The court shall not have cognizance of any action of ejectment or in which the title to any corporal or imcorporal hereditament or to any title, fair, market or franchise shall be in question. 53. Section 122 and the proviso thereto substantially reproduced B. 1 of (1838) 1 and 2 Vic. c. 74. 54. Section 124 gave immunity to Judges and other officers.' Section 125 provided that if the landlord had a lawful right to possession he would not be deemed a trespasser by reason of defect or irregularity in the proceeding. 55. Section 126 provided that if the landlord had no lawful right of entry the tenant or occupier may sue and on certain terms obtain a stay of execution of the warrant and the decree in the suit will supersede the warrant. 56. This Act was followed by (1855) 18 and 19 Vic. c. 108. The preamble states that the Act amends and extends the law. Section 50' provides that, in case of tenants of small value, if the tenancy has expired or been determined by a legal notice to quit,-- and such tenant or any person holding or claiming by, through or under him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint, at Ms option, either against such tenant, or against such person so neglecting or refusing, in the county court and thereupon a summons will issue and, if the Defendant does not shew good cause, then, on proof of the neglect or refusal to deliver possession, and of the value and of the holding and of the expiration or other determination of the tenancy, and of the title of the Plaintiff, if such title has accrued since the letting, of the service of summons, if the Defendant has not appeared,-- order that the possession of the premises mentioned in the plaint be given by the Defendant to the Plaintiff, and if such is not obeyed, the registrar shall issue-- a warrant authorising and requiring the High Bailiff of court to give possession of such premises to the Plaintiff. 57. It will thus appear that the section gave the landlord option to sue his tenant or occupier irrespective of the question who was in actual possession. The warrant to the bailiff was for possession of the premises. 57. It will thus appear that the section gave the landlord option to sue his tenant or occupier irrespective of the question who was in actual possession. The warrant to the bailiff was for possession of the premises. The section omitted the proviso to Section 122 of the earlier Acts, which expressly provided for a right of action by the tenant or occupant against the landlord in respect of unlawful entry. 58. Sections 58, 124 and 125 of the earlier statute were reproduced, but Section 126 was repealed. 59. Section 52 of (1856) 19 and 20 Vic. c. 108 made provision for recovery of possession of small tenements by landlords for nonpayment of rent. The relevant portion may be quoted: The Judge may order that possession of the premises mentioned in the plaint be given by the Defendant to the Plaintiff... and if such order be not obeyed and such rent... be not so paid, the registrar shall... issue a warrant authorising and requiring the High Bailiff of the court to give possession of such premises to the Plaintiff, and the Plaintiff shall from the time of the execution of such warrant hold the premises discharged of the tenancy, and the Defendant, and all persons claiming by, through, or under him, shall, so long as the order of the court remains unreversed, be barred from all relief in equity or otherwise. 60. Sinha J. stresses upon the last part of this section and holds that the difference in language between Sections 58 and 52 in this behalf points to the conclusion that the order for possession u/s 50 binds only the Defendant and sub-tenants who are not impleaded cannot be turned out of possession. 61. In my opinion, this is not the reason for the difference in language. The last sentence in Section 52 was inserted to preclude a possible claim by the sub-tenants against eviction, on the equitable ground that the sub-tenants had no privity of contract with the landlord and could not he sued for rent and the forfeiture for non-payment of rent ought not to have the effect of putting an end to their sub-tenancy. 61. The Victorian Statute of 1856 was followed by (1888) 51 and 52 Vic. c. 43. Sections 138 and 139 substantially follow Sections 50 and 52 of the statute of 1856. 61. The Victorian Statute of 1856 was followed by (1888) 51 and 52 Vic. c. 43. Sections 138 and 139 substantially follow Sections 50 and 52 of the statute of 1856. The main points of difference are that the Defendant may have the action transferred to the High Court in case questions of title arise for decision, that a claim for rent or mesne profits or both may be joined in an action for ejectment, that a sub-tenant 'served with summons shall give notice to the tenant. The form of the writ issued to the bailliff is, however, not altered. 62. The case of Hodson v. Waller (supra) has now to be considered. 63. It was an action of trespass. In 1852, Defendant Walker let out certain sheds to Usher at an yearly rent. Notice to quit was served on Usher. Proceedings under Sections 50 and 51 of 19 and 20 Vic. c. 108 were initiated in the county court against Usher for recovery of possession and for arrear of rent. An order was made by the county court upon Usher to give up possession. The order, not having been obeyed, a warrant was issued to the High Bailiff to deliver possession to Walker and to levy distress J for rent and costs. The bailiff was at first resisted by Usher, but when the bailiff went with policemen for the second time, he found no resistance and executed the warrant by emptying the shed and putting Walker in possession. 64. Plaintiff Hodson, who was in occupation of the sheds under a demise from Usher and was not a party to the aforesaid proceedings, started the action against Walker for taking and keeping possession of the premises. 65. Martin B. non-suited the Plaintiff on the ground that the act of Walker was protected by the order of the county court, that the execution of the writ had changed possession and the Plaintiff's remedy was to sue in ejectment. 66. A Rule for a new trial was issued on the ground of misdirection. 67. The Rule was heard by Piggot B. Channell B. and Martin B. himself. The Rule was made absolute by Piggot B. and Channell B., Martin B. dissented. 68. Mr. 66. A Rule for a new trial was issued on the ground of misdirection. 67. The Rule was heard by Piggot B. Channell B. and Martin B. himself. The Rule was made absolute by Piggot B. and Channell B., Martin B. dissented. 68. Mr. Meyer relied upon the following observations of Channell B. at p. 63: The landlord may, "at his option," enter a plaint either 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. 69. This passage does not state the effect of an order made against a tenant, so far as sub-tenants are concerned. On the other hand a passage which follows the above passage and runs as follows: 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, would tend to lend support to the view that persons other than those who are parties to the order can be turned out of possession in execution of the warrant. 70. Mr. Meyer also relied on the following passage: 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 proceedings and not able to dispute the title of the person who had set them in motion (p. 64). 71. All that the passage means is that persons not parties to the order may in appropriate proceedings dispute the title of the person who started the proceedings. 72. In my opinion, the question which is now before us, viz., whether the sub-tenant is bound by the order of the county court did not directly arise in the case. 73. 71. All that the passage means is that persons not parties to the order may in appropriate proceedings dispute the title of the person who started the proceedings. 72. In my opinion, the question which is now before us, viz., whether the sub-tenant is bound by the order of the county court did not directly arise in the case. 73. This will appear from the following passage in the judgment of Piggot B: Still the point that we have to determine is, whether it was competent for the Plaintiff to question the validity of the county court proceedings, and of the warrant, and to try the Defendant's lawful right (which he proposed to do) in this action of trespass. I am of opinion that it clearly was (p. 59). 74. Channell B. also made similar observations: The Plaintiff proposed at the trial to shew that the present Defendant was not really entitled to the shed as against himself, the Plaintiff, and that the learned Judge ruled that he could not do so, and that the proceedings in the county court were conclusive upon this point (p. 61). 75. The main point that was urged in that case was whether the omission of the priviso to Section 122 of 9 and 10 Vic. c. 95 in the substituted Section 50 of 18 and 19 Vic. c. 108 shewed that the legislature intended to take away the possessory action of trespass. 76. Piggot B. held that the proviso to Section 122 of 9 and 10 Vic. c. 95 did not confer a right of action, but was inserted ex majore cautela and the effect of the omission has not taken away any right of action against unlawful entry by the landlord. Channell B. concurred in this view. Martin B. dissented. 77. In my view, the new trial merely raised the issue as to non-suit of the Plaintiff and the majority of the Judges held that the suit was maintainable on limited grounds. 78. It may be pointed that Piggot B. was dubious about the ultimate success of the action, as would appear from a passage at p. 59, which precedes the passage already quoted. The same doubt was shared by Channell B. (see p. 64). 79. Hodson v. Walker (supra) does not, therefore, assist the Plaintiffs in the solution of the question now before us. It rather supports the Defendant No. 1. The same doubt was shared by Channell B. (see p. 64). 79. Hodson v. Walker (supra) does not, therefore, assist the Plaintiffs in the solution of the question now before us. It rather supports the Defendant No. 1. 80. Mr. Meyer also relied on Campbell v. Loader (1865) 3 H. and C. 520 : 159 E.R. 634. In this case, Campbell, the Plaintiff, let out certain premises to Harriet Ellis, who sublet a part to the Defendant Loader. Ellis defaulted in payment of rent. Campbell served a notice to quit on Ellis and Loader expiring on May 4, 1864. Campbell then entered a plaint against both Ellis and Loader for possession. Ellis did not appear and was struck out of the action. There was a consent order, whereby Loader agreed to give up possession on June 27, 1864. Loader gave up possession. Campbell then started this action for mesne profits from May 4, 1864, to June 27, 1864. 81. Loader's defence was that Ellis was a quarterly tenant and that the tenancy had not been legally determined by the notice to quit. 82. Campbell's case was that the order of the county court Judge was analogoiis to a judgment in ejectment and was conclusive on the question of Plaintiff's title (see p. 521). 83. The Judge directed that the order of the county court was not conclusive and left two questions to the jury: (i) whether Ellis was a quarterly or monthly tenant and (ii) whether any trespass had been committed. 84. The jury returned a verdict for the Defendant. 85. A Rule for a new trial was discharged by Channell B. and Martin B. 86. This case does not decide the present question. The order of the county court Judge was one passed on consent, and there was no express or implied adjudication of the Plaintiff's right to possession. 87. Sinha J. refers to the following passage in the judgment of Channell B. at p. 525: I think the county court Judge is rather in the position of a Magistrate having a stat table authority to order the possession of premises to be delivered up. 88. The decision of Channell B. proceeded on the ground that the Defendant could not be sued for trespass, as he gave up possession as agreed. Martin B. concurred. 89. Mr. 88. The decision of Channell B. proceeded on the ground that the Defendant could not be sued for trespass, as he gave up possession as agreed. Martin B. concurred. 89. Mr. Meyer also relied on the decision in Baggiammal v. Appadurai Gramni (1910) 6 Ind. Cas. 722. The judgment is very brief and it does not appear from the report whether the person who was evicted in execution of the order u/s 43 of the Act and who was restored to possession, presumably under Order XXI, Rule 101 of the Code of Civil Procedure, was a sub-tenant or not. If he was a sub-tenant the decision would support Mr. Meyer's contention, but, in the absence of fuller report, no conclusion can be drawn one way or the other. 90. I have dealt with, the cases cited by Mr. Meyer before me and they do not support his contention that the order u/s 43 must be regarded as binding only on the person impleaded, i.e., the tenant in the present case, and that the order is of no effect against a sub-tenant inducted by the tenant prior to the initiation of the proceedings u/s 41. 91. In my opinion, Sections 41 to 43 of the Act lay down a special procedure for recovery of possession of premises demised to tenants after determination of the tenancy. Such proceedings may be effectively laid against the tenant from whom possession was demanded. The order passed and the writ issued to the bailiff require and authorise delivery of actual possession of the premises. In cases where the eviction of the lessee is based on a ground which determines the sub-lease as well they are binding on the tenant and his privies including sub-tenants and they can all be turned out of possession of the premises by the bailiff acting in pursuance of the writ issued to him. The mere fact that the sub-tenant was not impleaded in the proceedings and summons was not served on him, does not entitle the sub-tenant to relief by way of a declaration that the order of the Presidency Small Cause Court is not binding on him or to an injunction restraining execution of the writ. On the facts of the present case the Plaintiffs are bound by the decree or order passed against their lessor in the Presidency Small Cause Court and they could be lawfully evicted thereunder. On the facts of the present case the Plaintiffs are bound by the decree or order passed against their lessor in the Presidency Small Cause Court and they could be lawfully evicted thereunder. The second question is answered accordingly. 92. Costs of this Reference will abide the result of the appeal.