JUDGMENT : ( 1. ) THIS Miscellaneous Appeal is directed against the order of the First Additional District Judge, Jabalpur, dated the 11th September, 1975, in Miscellaneous Judicial Case No. 6 of 1968. The said Miscellaneous Judicial case No. 6 of 1968 was registered under Order 21, Rule 97 of the Code of civil Procedure on the complaint of the Respondent, Her Highness Tej Kunwar saheba, the auction purchaser of a Cinema Hall know as "plaza Talkies" that she had been resisted in obtaining possession by M/s Supreme General Films exchange Private Ltd. , the appellant before this Court. The Additional district Judge framed issues on the pleadings raised, and ordered that he would record evidence if necessary, but only after he was satisfied on hearing arguments that such a course should be adopted. The parties to the proceedings felt dissatisfied. The Supreme General Films Exchange was insisting upon evidence to be taken first before arguments were heard, whereas the respondent-auction purchaser felt that no enquiry at all was necessary since the decision in the earlier suit had concluded the matter finally and the Supreme General Films exchange would not resist delivery of possession on any ground whatsoever. ( 2. ) BOTH the parties came to this Court in revision the one filed by the appellant was registered as Civil Revision No. 456 of 1974 and other filed by the auction purchaser was registered as Civil Revision No. 789 of 1974. The two revisions were heard together by C. P. Sen J. , who by a common order dated the 30th September, 1974, held that the Supreme General was not protected by the provisions of the Madhya Pradesh Accommodation Control Act, firstly because, a fully equipped cinema hall let out for the purposes of exhibiting films was not an accommodation within the meaning of the Act, and secondly because, the plea was barred by rule of constructive res judicata, the plea not having been raised in the earlier suit-Civil Suit No. 13-A of 1963, in which a declaration was given to the decree-holders (the auction purchaser being one of them) that the sale in execution of the mortgage decree passed in civil Suit No. 15-A of 1934 would pass to the auction purchaser property unaffected by the rights of the Supreme General under the lease deed dated 30-3 1956 (Ex. D-8 in the said suit), and thirdly because, the lease dated 30-3-1956 having been executed by the mortgagors during the pendency of the suit for sale by the mortgagees, was hit by the result of the litigation in view of section 52 of the Transfer of Property Act and that the lessee could not resist the claim for possession of the auction purchaser. ( 3. ) SEN J. thus overruled all conceivable objections in support of the resistence. No evidence, he said, was necessary for decision of any question. The Supreme Generals obstruction was held to be unjustified. The issues were, therefore, struck down and the executing Court was directed to proceed under Order 21, Rule 98 of the Code of Civil Procedure forthwith. ( 4. ) THE Supreme General feeling aggrieved by this order, filed special leave petition before the Supreme Court. The same was dismissed on 4th august, 1975. Their Lordships said that in view of their judgment in Civil appeal No. 1041 of 1968 M/s Supreme General Film Exchange Ltd. v. His highness Maharaja Sir Brijnath Singhji Deo, AIR 1975 SC 1810 . the special leave petition must be dismissed. ( 5. ) AFTER the matter went back to the Additional District Judge, he made the impugned order directing delivery of possession of the Plaza Talkies to the auction purchaser and in case anyone on behalf of the judgment-debtor or supreme General resisted delivery, to put him in Civil Prison. The Court also felt that the auction-purchaser was entitled to reasonable compensation, having been deprived of possession for almost eight years by the Supreme general. Even at the rate of Rs. 2100 per month, which the Supreme General was paying to the mortgagors, the amount would come to Rs. 1,05,200 after giving credit for the amount deposited in Court. The Court, therefore, ordered the supreme General to deposit the amount for payment to the auction-purchaser before they removed the machinery and furniture installed by them, or else, the Court said, the machinery and furniture would be attached for realization of such compensation as might be fixed. ( 6. ) THE first question that arises for consideration is whether an appeal is competent against the impugned order. Initially a revision was preferred which was converted into appeal under the local amendment to Order 21, Rule 98 of the Code of Civil Procedure (See order-sheet dated 15-9-1975 ). ( 6. ) THE first question that arises for consideration is whether an appeal is competent against the impugned order. Initially a revision was preferred which was converted into appeal under the local amendment to Order 21, Rule 98 of the Code of Civil Procedure (See order-sheet dated 15-9-1975 ). ( 7. ) ORDER 21, Rule 98 of the Code of Civil Procedure as locally amended, reads as under : "where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days, and may order the person or persons whom it holds responsible for such resistence or obstruction to pay jointly or severally, in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expense caused to him in obtaining possession. The order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. " ( 8. ) REASONABLE compensation under this Rule has not yet been determined. The Court has come to a tantative conclusion that the amount figures to something more than Rs. 1,05,200. Not that this amount was actually awarded to the auction-purchaser and she was permitted to execute her decree for this amount, but in order that her interests may be safeguarded, the Court ordered that the objectors property deserved to remain under attachment. The order, therefore, was not a final order determining reasonable compensation. It was an interlocatory order in the nature of attachment before judgment till the enquiry was completed. Such an order was not covered by any express provision of the Code (Order 38, Rule 5, Civil Procedure Code was not in terms applicable because the enquiry under Order 21, Rule 93, Civil Procedure Code was not a suit. ). It was an interlocatory order in the nature of attachment before judgment till the enquiry was completed. Such an order was not covered by any express provision of the Code (Order 38, Rule 5, Civil Procedure Code was not in terms applicable because the enquiry under Order 21, Rule 93, Civil Procedure Code was not a suit. ). But where justice had to be done, powers had to be exercised under section 151 of the Code taking recourse analogous provisions applicable to circumstances which stand nearest to the case in hand. The Court, therefore, gave option to the objector to deposit Rs. 1,05,200 or suffer an attachment of his property on the premises. As I construe the order, it is one under section 151 of the Code intended to serve the ends of justice. The order, therefore, was not appealable. Such an order would not ordinarily be interfered with in Revision. Probably for that reason, the objector got the Revision converted into a Miscellaneous Appeal. ( 9. ) AS regards the ultimate result of enquiry under Order 21, Rule 97, Civil Procedure Code, the order is conclusive since no suit under Order 21, Rule 103 of the Code has so far been filed. As there is an express provision in Order 21, Rule 103, Civil Procedure Code for a suit to establish right, no revision or appeal could be preferred against an order passed under Order 21, Rule 97 of the Code of Civil Procedure. ( 10. ) IT follows, therefore, that no appeal is competent against the impugned order. That apart, Sen J. s judgment in Civil Revision No. 456 of 1974 could not be open to challenge in subsequent stages of the same proceeding. Even an erroneous decision summarily arrived at would bind the parties subject, however, to the result of the suit under Order 21, Rule 103, Civil Procedure Code if it comes to be filed within limitation. (See Piarelal v. Bhagwati Prasad, 1969 MPLJ 17 = air 1969 MP 35 . ). ( 11. ) THIS appeal could, therefore, be dismissed on a short ground that it was incompetent, and that it sought to assail an earlier decision given by this Court in Civil Revision No. 456 of 1974 which was binding on the parties at subsequent stages of the same proceedings on the principles of res judicata. ). ( 11. ) THIS appeal could, therefore, be dismissed on a short ground that it was incompetent, and that it sought to assail an earlier decision given by this Court in Civil Revision No. 456 of 1974 which was binding on the parties at subsequent stages of the same proceedings on the principles of res judicata. Possession of the Cinema Hall having been delivered to the auction-purchaser after the finding was recorded that the appellant was offering resistance without just cause, the only remedy available to the appellant was a suit under Order 21, Rule 103, Civil Procedure Code for establishing his right. Possession could not otherwise be restored to the appellant. ( 12. ) THE learned counsel for the appellant argued that by the impugned order the Court had tentatively fixed reasonable compensation and the order fixing compensation, whether provisional or final, was appealable under the amended local Rule as if it was a decree. ( 13. ) THE error in the argument lies in construing the order as a provisional fixation of compensation. It was not so. In justification for an attachment, the Court had only said that the compensation would likely figure to something over a lac. The Court had passed no executable order, provisional or final. ( 14. ) THE second argument was that an auction-purchaser was a representative of the decree-holder and the appellant-lessees was a representative of the judgment-debtor. The question of eviction of the lessees, or termination of the lease on sale of the property, was a question connected with the execution, satisfaction and discharge of the decree. Any order relating to eviction was an order under section 47 of the Code of Civil Procedure and, therefore, appealable. ( 15. ) THIS argument again overlooks the specific provision of Order 21, Rule 103 of the Code. Where special remedy is provided, recourse to appeal under section 47 is not available. The law makes the order passed under the provisions of Order 21, Rule 97, Civil Procedure Code conclusive unless the remedy of a suit under Order 21, Rule 103 is availed. ( 16. Where special remedy is provided, recourse to appeal under section 47 is not available. The law makes the order passed under the provisions of Order 21, Rule 97, Civil Procedure Code conclusive unless the remedy of a suit under Order 21, Rule 103 is availed. ( 16. ) IT was faintly argued that a declaratory suit under Order 21, Rule 103, Civil Procedure Code had hardly any chance of success in a subordinate Court or even a District Court once the High Court had in Civil Revision No. 456 of 1974 given findings that the lease was one of running Cinema business, and, therefore, not an accommodation within the meaning of the M. P. Accommodation Control Act and that the decision in Civil Suit No. 13-A of 1963 barred the plea of protection under the M. P. Accommodation Control Act by rule of constructive res judicata. The counsel submitted that findings given in summary proceedings did not operate as res judicata not was the earlier suit one for eviction of a tenant and, therefore, it was immaterial whether the tenant invoked the protection of the M. P. Accommodation Control Act. The counsel said, he was on firmer grounds if he tried to assail the findings of Sen J. , in the regular suit. But unfortunately, a subordinate Court would not have that grit to disagree with the High Courts findings. It would, therefore, be fair if the High Court reviewed its earlier order at the subsequent stage of the proceeding by entertaining this appeal. ( 17. ) TO say the least, it is an argument in dispair. It cannot prevail. If remedy of a suit is provided, that alone has to be followed. The arguments advanced here, be advanced before the Court trying the suit. If the arguments carry conviction, the subordinate Judge is expected to be as independent in his judgment as a superior Court. ( 18. ) I would like, however, to say something on merits of the case. Let me state the facts very briefly : Bhatiyas were the owners of "sunder Vilas theatre", now known as "plaza Talkies". In 1951, they mortgaged the theatre with the Maharaja of Maiher and the respondent Maharani Saheba. In 1954, the mortgagees filed a suit for sale of the mortgaged property for recovery of the mortgaged debt. Let me state the facts very briefly : Bhatiyas were the owners of "sunder Vilas theatre", now known as "plaza Talkies". In 1951, they mortgaged the theatre with the Maharaja of Maiher and the respondent Maharani Saheba. In 1954, the mortgagees filed a suit for sale of the mortgaged property for recovery of the mortgaged debt. The suit was compromised in 1960 and a final decree for sale was passed. (Civil Suit No. 15-A of 1954 decided on 7-5-1960 ). ( 19. ) THE appellant was a lessee of the mortgagors since 1940, having taken the theatre on lease for exhibition of films. The period of lease expired in 1948. The mortgagors, however, gave a letter on 10-8-1948 agreeing to give a fresh lease for 7 1/2 years. ( 20. ) AFTER the mortgagees had filed Civil Suit No. 15-A of 1954 for sale of the mortgaged property, the appellant also filed Civil Suit No. 16-A of 1954 for specific performance of the agreement dated 10-8-1948. Bhatiyas compromised the suit and in pursuance of the compromise decree, executed a lease deed for a period of 8 years in favour of the appellant on 30-3-1956. The lessees were given option of renewal for another six years. ( 21. ) BHATIYAS were indebted to Central Bank of India also. The Bank had obtained a decree in Civil Suit No 3-B of 1952. In execution of the said decree, Plaza Talkies was attached on 4-5-1955. This decree was assigned to the mortgagor Maharaja on 20-4-1960. ( 22. ) FOR Income-tax and Sales Tax dues against Bhatiyas, the Plaza talkies was sold on 29 10-1960 subject to mortgage encumbrances and later came in the hands of Thakur Harish Chandra Singh whose position under law was that of a mortgagor. ( 23. ) THE mortgagees i. e. the Maharaja and the Maharani having already obtained a final decree for sale, were apprehensive that the appellant-lessee from the mortgagors would create trouble and, therefore, they filed a suit-Civil Suit no. ( 23. ) THE mortgagees i. e. the Maharaja and the Maharani having already obtained a final decree for sale, were apprehensive that the appellant-lessee from the mortgagors would create trouble and, therefore, they filed a suit-Civil Suit no. 13-A of 1963 for a declaration that the lease dated the 30th March, 1956, in favour of the appellant was collusive, was hit by doctrine of lis pendens, and was void under section 64 of the Code of Civil Procedure and that the purchaser in the execution of the mortgage decree, or the other decree assigned by the central Bank to the mortgagees, would get the property as if there existed no lease. ( 24. ) THE mortgagees succeeded in obtaining the declaration prayed for. The Supreme General went up in appeal: First Appeal No. 8 of 1966. A plea was raised that the Supreme General was a tenant holding over, and could only be ejected if one of the grounds under the M. P. Accommodation Control Act was made out. In regard to that plea, their Lordships hearing First Appeal no. 8 of 1966, made the following observations : "the plaintiffs are satisfied with the declaration that the lease deed dated 24 (30) March, 1956 taken by the appellant from the Bhatiyas is void and of no effect so far as the enforcement of the plaintiffs decretal claim is concerned. In other words the plaintiffs only attack is on the lease deed just mentioned. If the plaintiffs have chosen to seek a limited declaration and they do not want us to go into that question, we leave it open and it will be open to be agitated if and when a suit for eviction is instituted against the appellant; we do not say whether the appellant is or is not protected by the M. P. Accommodation Control Act, 1961, from eviction from the suit premises. The declaration which the trial Court has given is restricted to the lease deed dated 24 (30) March, 1956 (Ex D-8 ). " ( 25. ) THE declaration as granted by the trial Court was maintained. The supreme General then went to the Supreme Court by special leave. The appeal was registered as Civil Appeal No. 1041 (N) of 1968. In the meantime, the execution of the mortgage decree proceeded. The Plaza Talkies was put to sale and purchased by the Maharani, decree holder. ) THE declaration as granted by the trial Court was maintained. The supreme General then went to the Supreme Court by special leave. The appeal was registered as Civil Appeal No. 1041 (N) of 1968. In the meantime, the execution of the mortgage decree proceeded. The Plaza Talkies was put to sale and purchased by the Maharani, decree holder. The sale was confirmed in favour of the Maharani on 21-2-1968 She got a warrant of possession issued on 2-3-1968. It was resisted. The enquiry under Order 21, Rule 97, Civil procedure Code commenced, but was protracted for almost eight years for decision, and ultimately came to an end by decision in Civil Revision No. 456 of 1974 by Sen J. ( 26. ) THE Supreme General went to the Supreme Court for special leave against the order of Sen J. , which petition was put up for hearing along with civil Appeal No. 1041 (N) of 1968. The petition was dismissed in view of their lordships Judgment in the main appeal (Civil Appeal No. 1041 /68) M/s. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath singhji Deo of Maihar. ( 27. ) THE pertinent thing to note is that in the memo of appeal before the supreme Court (in Civil Appeal No 1041 of 1968) and in the special leave petition against Sen J. Judgment in Civil Revision No. 456 of 1974, a specific plea was raised that the appellants were protected by the M. P. Accommodation control Act since they were tenants holding over and that an absolute declaration prayed for by the mortgagees could not be granted. Whatever concessions were made in First Appeal No. 8 of 1966 in the High Court which dissuaded the Court for considering the plea, at least those concessions were withdrawn in the Supreme Court. The appellant had reagitated the question of protection of the M. P. Accommodation Control Act and wanted a decision. The Supreme court in deciding the appeal should be deemed to have considered the question and to have overruled it since their Lordships were pleased to dismiss the appeal in toto. In my reading of the Judgment, the conclusion is irresistible that their lordships have impliedly said that the protection of the M. P. Accommodation control Act was not available to the appellant. In my reading of the Judgment, the conclusion is irresistible that their lordships have impliedly said that the protection of the M. P. Accommodation control Act was not available to the appellant. To illustrate, in para 18 of the judgment ( AIR 1975 SC 1810 at page 1813) their Lordships have negatived the appellants plea that they were tenants holding over or that the lease deed of 1956 was executed in satisfaction of an antecedent claims arising out of an agreement of the year 1948. Their Lordships instead, have held the lease deed of 1956 conferred upon the appellants new rights. ( 28. ) IN para 19, their Lordships say that the lease of 1956 was invalid from the outset since hit by section 52 of the Transfer of Property Act. In para 20, their Lordships further strike down the lease under section 64 of the code of Civil Procedure. ( 29. ) THE result that follows is what their Lordships said in M/s. Sachalmal parasram v. Mst. Ratanbai, AIR 1972 SC 637 . in para 7. That was a lease created by a mortgagee and the mortgagor had redeemed the mortgage. The question arose whether the lessee could claim protection of the M. P. Accommodation Control Act. Their Lordships observed : "this Court then examined the question whether the tenants could take advantage of the provisions of the East Punjab Urban Rent Restriction Act, 1949. The Court answered the question in the following words : the respondents attempted to argue that the Rent Restriction Act defines landlord and tenant with reference to the payment of rent. A landlord means a person entitled to receive rent and a tenant means any person by whom or on whose account rent is payable. These definitions apply if the tenancy, either real or statutory, could be said to survive after the termination of the mortgage. . . . . . The termination of the mortgagee interest terminated the relationship of landlord and tenant and it could not, in the circumstances, be said to run with the land. There being no landlord and no tenant, the provisions of the Rent Restriction Act could not apply any further. " ( 30. ) IN the present case, the situation is that the lease was granted by the mortgagors during the pendency of the mortgage suit for sale. There being no landlord and no tenant, the provisions of the Rent Restriction Act could not apply any further. " ( 30. ) IN the present case, the situation is that the lease was granted by the mortgagors during the pendency of the mortgage suit for sale. Their Lordships have held that the lease was void from the outset That means, on sale of the property, the auction purchaser was not bound by the lease. No relationship of landlord and tenant comes to be established between the purchaser and the lessee. The lessee could, therefore, not claim any protection of the M. P. Accommodation Control Act. ( 31. ) UNDER exactly similar circumstances the Division Bench of the gujarat High Court have, in Maganlal v. Lakhiram, AIR 1968 Guj. 193 . held that the lease created by the mortgagor during the pendency of a suit for sale, would neither bind the mortgagee nor the auction-purchaser. The relevant discussion of law is in para 3 of the report. The protection claimed by the lessee under the Rent Act of Bombay was denied (See para. 5 ). It would serve no useful purpose reproducing the observations here. The authority has my respectful concurrence and may be read in full. ( 32. ) THE controversy, therefore, seems to have been settled by the decision of the Supreme Court in Civil Appeal No. 1041/68 (A I R 1975 SC 1810) and could not be permitted to be reagitated. The appellant had no justifiable cause in offering resistance. The auction-purchaser was entitled to receive actual possession. ( 33. ) I may also incidentally mention that what was let out was "a going undertaking or ready-to-launch and fully equipped cinema house" and, therefore, it was not an accommodation within the meaning of the Act. Such was the construction placed by Sen J. in the earlier stage of the same proceeding with which I am bound. Even otherwise, I would have come to the same conclusion in the light of what is said in Dwarka Prasad v. Dwarka Das, AIR 1975 SC 1758 . Uttam-chand v. S. M. Lalwani, AIR 1965 SC 716 . and Babu Harising v Ratanla, 1969 MPLJ 662. ( 34. ) IN the result, the appeal must be and is hereby dismissed. The executing Court must proceed to determine the reasonable amount of compensation as expeditiously as possible. Costs on appellants. Uttam-chand v. S. M. Lalwani, AIR 1965 SC 716 . and Babu Harising v Ratanla, 1969 MPLJ 662. ( 34. ) IN the result, the appeal must be and is hereby dismissed. The executing Court must proceed to determine the reasonable amount of compensation as expeditiously as possible. Costs on appellants. Counsels fee Rs. 300. Appeal dismissed.