Judgment :- 1. The landlady is the petitioner herein. The landlady filed the petition for eviction against the tenant one Dr. A.C.K. Hebbar under Sec. 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 (hereinafter referred to as ‘the Act’) on the ground that the petition premises was sub let to one Pachayappan, who was carrying on gunny cloth business herein. In the counter filed by the tenant, it is stated as under:— “As regards the allegations In the counter filed by the tenant, it is stated asunder:— in para 4 of the petition this respondent denies the entire allegation as false. The petitioners son Haridas is well aware the one F.O.W. was closed and opening was made on the street side and converted into one small room for which there was no demand and therefore it was thrust on this respondent to let out at his risk as he had recommended one person and Rs. 25/- was collected from the respondent and the said small place is being used by the respondents caretaker and there is no subletting as alleged in the petition”. 2. However, both the authorities below concurrently came to the conclusion that the landlady failed to establish the subletting as alleged by her in the petition for eviction. Accordingly, the petition for eviction filed under S. 10(2)(ii)(a) of the Act was dismissed. It is against that order the landlady is in revision before this Court. 3. Learned counsel for the petitioner submitted as under:— The tenant has already accepted that a portion of the petition premises was let out to the subtenant on a monthly rent of Rs. 25/-. But according to the tenant the portion was sublet only with the recommendation of the landlady. Under the Act, a tenant can sublet the petition premises only with written consent, of the landlord. Nothing short of this would entitle a tenant to sublet a portion or the entire premises to a sub tenant. Under such circumstances, it was pleaded that the authorities below were not correct in dismissing the petition for eviction filed under S. 10(2)(ii)(a) of the Act. 4. I have also heard the learned counsel for the tenant, who stated that the tenant has already vacated from the petition premises. 5. I have heard the rival submissions and also perused the records carefully. 4. I have also heard the learned counsel for the tenant, who stated that the tenant has already vacated from the petition premises. 5. I have heard the rival submissions and also perused the records carefully. The fact remains that a portion of the petition premises was let out to one Pachayappan by the tenant on a monthly rent of Rs. 25/-. But according to the tenant the petition premises was sublet since the landlady herself has recommended to sublet a portion of the petition premises. But under the Act, a tenant, without the written consent of the landlord, cannot sublet a portion of petition premises or entire premises to a third party. In the present case, it was accepted that the legal possession of the petition premises was parted with by the tenant in favour of the sub-tenant. But the authorities below proceeded on a different footing. It remains to be seen that the tenant himself has accepted that a portion of the petition premises was sublet to the subtenant on a monthly rent of Rs. 25/- especially on the recommendation of the landlady. Therefore, further proof by the landlady is not necessary for establishing the subletting, and the burden of proof shifts on the tenant to show that the subletting was with, the written consent of the landlady. But in the present case there is no such written consent. Hence the petitioner herein established that a portion of the petition premises was let out to the sub-tenant by the tenant. 6. The next question that arises fort consideration in this revision is whether an order passed against a tenant would be binding on the sub-tenant, especially when he is not a party to these proceedings. In order to elucidate this aspect there are several decisions of this Court. One such decision is reported in 1967 I MLJ 84 at 89 (Parthasarathy Chetty v. Chitra Pillai), wherein this Court while considering the provisions of Order 21, Rules 35 and 97 to 103 of C.P.C. and S. 26 and S. 35 of the Act 28 of 1960 held as under: “This argument in my opinion proceeds on a fallacy. Sec. 26 does not say that if a subtenant is not impleaded it shall not be binding on him. Sec. 26 does not say that if a subtenant is not impleaded it shall not be binding on him. No doubt under the old Act, the provision was only that an order passed against a tenant was binding on the sub-tenant, in the absence of any fraud or collusion and there is a substantial variation in the new Section. The object of the particular provision in the old Act and the effect of the variation by the new Act can be appreciated only if the general law in regard to the matter and the procedural law relating to execution of the order in question is understood. Under Sec. 9 of the old Act, the order for eviction under Sec. 7 or Sec. 8 and orders on appeal or execution therefrom have to be executed in the civil courts indicated and they shall be executed as if it were a decree passed by that court. The corresponding provision under the present Act is Section 18 and there is no material change therein from the old provision. Under both the Acts, there is no material change therein from the old orders passed in execution. Obviously, this would refer to orders appealable under section 47, Civil Procedure Code. It is settled law that a decree in ejectment passed against a tenant at the instance of a landlord is not only binding upon the tenant, but also upon his sub-tenants provided they have no right, independent of the right of the tenant in the demised premises”. 7. A similar issue arose before a Division Bench decision of this Court in the case of Nayagamma v. Plantain Merchants Association Madurai (1968) I MLJ 386 = 81 L.W. 8, wherein this Court, while considering the provisions of Sec. 26 of the Act and Order 21, Rules 35 and 98 of C.P.C. held as under:— “Under section 12-C of the Madras Act 25 of 1949 an order for eviction of a tenant passed under the Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. But, under section 26 of the Act, only the binding nature of the order of eviction against the subtenants who were made parties, was specified, leaving the general law as to the rights and liabilities of the sub-tenants not made parties in tact. It is clear from the latter part of section 26 of the Act that persons who became sub-tenants after the date of application for eviction shall be bound by the order of eviction, whether made parties or not. If the sub-tenants are made parties, the order of eviction would be binding on them of its own force and execution could be levied under O. 21, R. 35, C.P.C. But if the sub-tenants are not made parties to the eviction application, they will not be parties to the order and any obstruction for delivery in execution would fall only under Order 21, Rule 98, C.P.C. Natesan, J. has pointed out at page 88 of the decision in Parthasarathi Chetti v. Chitra Pillai (1967-1-MLJ 84) that in such circumstances the provision of Order 21, Rule 97, C.P.C. have to be availed of by decree-holder and if the Court is satisfied that the objection was wanton and made without just cause, the obstruction could be directed to be removed and the decree-holder in possession, dispossessing the sub-tenant. The sub-tenant who is not made a party may set up independent right to continue in possession of the demised premises. Thus, as pointed out by Natesan, J. a sub-tenant who was no t made a party to the eviction application may set up his own title or he may plead a direct tenancy apart from contending that the eviction order had been obtained fraudulently and in collusion. The rights of a sub-tenant, who has not been made a party are sufficiently protected by the general provisions contained in O. 21, Rr. 98 to 103 of C.P.C.”. Therefore it remains to be seen that it is settled law that a decree for possession obtained against a tenant can straightway be executed as against the property in the hands of the subtenant even though the subtenant was not a party to the eviction proceedings. 8. Considering the facts arising in this case in the light of the judicial pronouncements cited supra, I hold that the order passed by the authorities below is not in order. 8. Considering the facts arising in this case in the light of the judicial pronouncements cited supra, I hold that the order passed by the authorities below is not in order. Accordingly order passed by the Rent Control Appellate Authority is set aside and eviction is ordered against the subtenant. 9. In the result, the revision is allowed. No costs. Time for eviction one month.