Order This is an application for taking the plaint off the file on the ground that the subject matter of the suit is properly a matter for consideration under Section 47 of the Code of Civil Procedure. 2. The plaintiff respondent is a sub-lessee of the first defendant Oriental Insurance. A suit as between the second defendant, Delta International and Oriental was decreed whereby the tenant, Oriental suffered a decree of eviction. 3. There were two sub-tenants one of whom is the plaintiff in the instant matter and the other of whom was one Sampatraj Pagaria. An application against Sampatraj Pagaria regarding taking his plaint off the file has already succeeded and the judgment delivered by Shyamal Kumar Sen J. in the matter is reported in AIR 1992 Cal. page 153. 4. I find that as between that case and this, there is no significant difference. On the question of binding precedent, therefore, I agree with Mr. P.K. Roy, who appeared for the petitioner second defendant, that I am not free to decide differently and that on that basis I should also reject the present plaint in question. 5. However, I propose to say one or two things in view of a new argument that has been sought to be advanced by Mr. Mitter appearing for the said plaintiff respondent, who is still in possession. 6. Mr. Mitter said inter alia that his client is a sub-tenant with a protected right under the West Bengal Premises Tenancy Act and that he can maintain possession on his own on the basis of the provisions of the said Act notwithstanding a decree passed in eviction as against the tenant. 7. Mr. Mitter submitted that accordingly his client is not truly a representative of the judgment debtor tenant so that his suit is not barred under Section 47. 8. He also submitted that under Order 21, Rule 97, a decree holder, when he meets with resistance, can complain to the Court and so can a person other than the judgment debtor under Order 21, Rule 99 when he is dispossessed pursuant to the decree. Mr. 8. He also submitted that under Order 21, Rule 97, a decree holder, when he meets with resistance, can complain to the Court and so can a person other than the judgment debtor under Order 21, Rule 99 when he is dispossessed pursuant to the decree. Mr. Mitter submitted on the basis of these two Rules that if a third party resists a decree-holder then the decree-holder can apply under Order 21, Rule 97 and also that if a third party is dispossessed by a decree-holder he can apply for coming back into possession under Order 21, Rule 99. 9. But, said Mr. Mitter, there is no Rule in Order 21 which permits a third party to apply for protection against apprehended execution as against him of a decree to which the third party contends himself to bean outsider and stranger. 10. Mr. Mitter also said that such a quia timet application on the part of a genuine third party is not permissible under section 47 of the Code either as the said Section is limited to parties and their representatives and a third party claiming to be such, cannot apply either as party to the suit or as a representative of a party to a suit. 11. Before I come to deal with the persuasive authority of certain decisions relied upon by Mr. Mitter the logic of this submission must be examined. It what Mr. Mitter submits is right, then a third party dispossessed can apply in the execution court, and an obstructing third party can also be proceeded against by the plaintiff in an executing court. But, if the roles of the applicant and the respondent are merely reversed, then that same third party cannot make an application in the executing court for seeking protection against execution by the judgment creditor pursuant to the same decree in question. This would, to say the least, be a most odd distinction without any particular reason that I can see or define. 12. It is well known that the Sections of the Code are the primary part and that the orders and Rules in the First Schedule are amplificatory thereof. These Sections the High Courts cannot derogate from but they can make their own Rules different from the scheduled Orders and the Rules. 12. It is well known that the Sections of the Code are the primary part and that the orders and Rules in the First Schedule are amplificatory thereof. These Sections the High Courts cannot derogate from but they can make their own Rules different from the scheduled Orders and the Rules. In case Order 21, Rule 97 and Order 21, Rule 99, are not Rules, which are at least partly amplificatory of the position envisaged in Section 47, then there is no other Section in the Code which can be pointed out under which those two Rules under Order 21 could at all be said to be formulated. 13. Section 74 of the Civil Procedure Code grants an additional remedy regarding imprisonment for obstruction to execution and the same is not much in point. 14. If Mr. Mitter's contentions are to be accepted, then I would also have to come to the conclusion that Order 21, Rule 97 and Order 21, Rule 99 and the related Rules are outside the scope and purview of Section 47 and that they are almost sui generis. I would rather construe Order 21, Rule 97 and Order 21, Rule 99, as Rules partly amplificatory of the power granted under Section 47, and also hold that such applications by or against third parties are not exhaustive of the third party situations that might be encountered by an executing court under Section 47. Such an executing court might face an application by a genuine third party under Section 47 as it apprehends execution and the Court would not be powerless in entertaining such an application. In other words, the Court does not have to tell the applicant that your application is dismissed. You apply main force and resist the machinery of legal execution, forcing the judgment creditor to apply under Order 21 Rule 97 for determination of your independent rights. Or, you wait until you are actually dispossessed by the same decree-holder and after you are dispossessed, you can come and apply again before this very same Court for reinstatement under Order 21, Rule 99. This would be a travesty of justice and somewhat of a mockery. 15. Mr. Or, you wait until you are actually dispossessed by the same decree-holder and after you are dispossessed, you can come and apply again before this very same Court for reinstatement under Order 21, Rule 99. This would be a travesty of justice and somewhat of a mockery. 15. Mr. Mitter next submitted that a person who applies under Section 47, even if he is able to establish his status as not being a representative of the judgment debtor, would then only establish something which would go to show that his application has been improperly made. In my opinion this is not the way Section 47 is to be read. After all, the question as between the judgment creditor and the third party is whether the third party is a genuine third party on its own right or whether it is a representative of the judgment debtor. Such a question is determined under applications under Order 21, Rule 97, and Order 21, Rule 99. Such a question should also be determined if the third party chooses to apply directly under Section 47 without waiting to be dispossessed. If and when the Court comes to the conclusion that the third party is a genuine third party and is not a representative of the judgment debtor then the Court will pass orders with content, declaring the third party to be such and also declaring that the decree as against such third party is inexecutable as that party is not a true representative of the judgment debtor. In an application, for example, under Art 226 of the Constitution, where an order or an administrative action is assailed as void, if and when the petitioner is successful in establishing such allegation, the Court does not say that the order or action is void so that the petitioner came to Court uselessly and that the petitioner's application must therefore be dismissed. The Court, on the other hand, declares the voidness and passes all necessary consequential orders to render such declaration effective. 16. In a similar manner if on the application of the third party the Court comes to the conclusion that the said third party is not a representative of the judgment debtor the Court would not pass an order saying that he need not have to come up at all as he is not a representative and thus dismiss his application. In a similar manner if on the application of the third party the Court comes to the conclusion that the said third party is not a representative of the judgment debtor the Court would not pass an order saying that he need not have to come up at all as he is not a representative and thus dismiss his application. The Court, on the other hand follows up the finding of the party being not a representative by passing appropriate orders of injunction or other reliefs whereby such third party for all times to come thereafter would remain protected as against the judgment creditor for any liability to execution pursuant to the decree in question. 17. The first claim in this plaint is a claim that the decree between the two defendants is invalid and not binding. Such claims are well known claims within the ambit of Section 47. If a decree is without jurisdiction or if a decree is a nullity the same is declared to be inexecutible in applications under Section 47. 18. The plaint in the instant matter is clearly of a type which is represented by Section 47 disputes and it would create an odd precedent in law if a plaint of this nature alone were to be held to fall outside the Section 47 ambit merely because of its quia timet nature. 19. Mr. Mitter relied upon the Full Bench decision of the Madhya Pradesh High Court reported in AIR 1980 M.P. Page 146 and said especially on the basis of the observations and quotations in paragraph 12 of the said judgment that a third party would have no locus standi at the stage prior to delivery of possession to apply under Section 47. With the greatest of respect I am unable to agree with view and I follow, as I have to, the observation of Shyamal Kumar Sen J. made in his Lordship's judgment in paragraph 31 where his Lordship, with respect, briefly and succinctly put this matter thus, rejecting the sub-tenant's right to file a suit merely because he is still in possession;- "Merely because no execution proceeding' has been initiated will not create any fresh right in favour of determination of a dispute of their right arising therefrom which may also be determined in execution proceeding." 20. In the matter I venture to read the above observation of his Lordship, it was ruled that even though an execution proceeding has not yet started, a third party can yet apply quia timet under Section 47 and that such third party cannot have an additional right to file a suit instead of filing an application under Section •n merely because no execution proceeding as against it is yet afoot. 21. On the basis of the above reasoning I am also unable with the greatest of respect, to follow the observation and dicta in the two other cases relied upon by Mr. Mitter, being the Division Bench decision of the Madhya Pradesh High Court in the case of Md. Sharif reported in AIR 1983 M.P. page 44 and the Single Bench decision in the case of Sm. Sona Devi reported in AIR 1988, Allahabad, page 52. 22. The application accordingly succeeds. The plaint shall forthwith be taken off the file. This interim orders, if any, passed in the suit shall forthwith stand vacated. The plaintiff will however be entitled to make an application under Section 47 (if otherwise entitled) for the purpose of protection of its rights. The observations made here being only upon the question of the mode of procedure that the plaintiff should adopt, none of the same would affect the rights or contentions of the parties if any application under Section 47 is hereafter initiated either by the plaintiff or by any of the respondents herein. 23. As the matter is one where a point almost of first impression has been raised there will be no order as to costs. 24. Stay of operation of this order and of the decree are prayed for but such prayers are refused. 25. All parties and their representatives and all others concerned to act on a signed copy of this dictated order on the usual undertaking. Application allowed; the plaint shall forthwith be taken off the file.