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2001 DIGILAW 692 (CAL)

Manabendra Chakraborty v. Tapan Kumar Shaw

2001-10-19

ASIT KUMAR BISI, TARUN CHATTERJEE

body2001
JUDGMENT Tarun Chatterjee, J. 1. In our view, these two appeals are the glaring examples of the Privy Council dictum "trouble starts of a decree holder only after a decree is passed." 2. Before we take up the submissions made on behalf of the parties, it would be fit and proper to narrate the facts of these two appeals from which it would be evident how the judgment debtors or their agents had successfully frustrated the decree holders from executing the decree by taking various dubious methods. 3. Both these appeals have been preferred against a common judgment and/or order dated 5th June, 1998 passed by the learned Judge, 12th Bench of the City Civil Court, Calcutta in Misc. Cases Nos. 3746-47 of 1997 which arose out of the applications filed at the instance of the appellants under Order 21 Rule 101 read with section 151 of the Code of Civil Procedure in connection with Title Execution Case No. 66 of 1997. In the applications under Order 21 Rule 101 of the Code of Civil Procedure (in short "the said applications") the appellants had prayed for determination of their right, title and interest in the decretal premises described in the Schedule 'A' to the said applications. Let us narrate the facts leading to filing of the said applications which run as under: 4. One Raj Kr. Shaw (since deceased) was the predecessor in interest of the decree holders/ respondents. Ranjit Kumar Dutta (since deceased) was the predecessor in interest of the judgment debtor/ proforma respondent. The father of Raj Kumar Shaw (deceased) inducted the father of the judgment debtor/proforma respondent as a lessee by a deed of lease dated 8th October, 1951 in respect of one room, privy and bath room in the ground floor of premises No.7, Old House Corner, Calcutta (hereinafter referred to as "the premises"). The lease was initially for 15 years commencing from 1st October, 1956 and terminating on 30th November, 1971 at a monthly rental of Rs. 700/- payable according to English Calender Month, with an option on the part of the lessee to renew the same for a further period of 15 years. On expiry of 30 years, the decree holders/respondents filed a suit for eviction against the judgment debtor/proforma respondent from the said premises on the ground that the lease had expired by effiux of time. On expiry of 30 years, the decree holders/respondents filed a suit for eviction against the judgment debtor/proforma respondent from the said premises on the ground that the lease had expired by effiux of time. The suit was decreed by the Trial Court. Feeling aggrieved by the judgment and decree of the Trial Court, an appeal was preferred before this Court which was registered as F.A.No. 149/94. The first appeal came up for hearing before B.L. Jain and S. Narayan, JJ. (as their Lordships then were). As there was difference of opinion between the two Hon'ble Judges, the appeal was referred by the Hon'ble Chief Justice to a third Judge Vidyanand, J. (as His Lordship then was) before whom the appeal was referred by the Hon'ble Chief Justice, finally dismissed the appeal of the judgment debtor/proforma respondent. 5. Feeling aggrieved by this judgment, the judgment debtor/proforma respondent filed a Special Leave Petition before the Hon'ble Supreme Court. The said Special Leave Petition was dismissed by the Hon'ble Supreme Court on 9th July, 1997 by passing the following order:- "In the facts of this case we are satisfied that the petitioner-tenant has been able to protract the litigation unduly and thereby has derived considerable benefit already. We find no merit in the special leave petition and it is, therefore, dismissed. We consider it necessary also to observe that in view of the attitude of the petitioner evident on the facts of this case. it is necessary that the concerned Court would take all necessary steps for an expeditious execution of the decree passed against the petitioner which has become final." (Emphasis added) 6. Subsequent to the passing of the aforesaid order of the Supreme Court dismissing the Special Leave Petition, a review application was made by the judgment debtor/proforma respondent before the Apex Court of our country. The said review petition was also rejected by our Apex Court on 1st October, 1997 by the following order: "We have carefully gone through the review petition and the connected papers. We find no merit in the review petition and the same is accordingly dismissed." (Emphasis supplied) 7. The said review petition was also rejected by our Apex Court on 1st October, 1997 by the following order: "We have carefully gone through the review petition and the connected papers. We find no merit in the review petition and the same is accordingly dismissed." (Emphasis supplied) 7. After the rejection of the Special Leave Petition and the review application by the Hon'ble Supreme Court in which the Hon'ble Supreme Court had made the observations as noted hereinearlier, even the agony of the decree holders/respondents to get back possession of the decretal premises did not end. Inspite of the aforesaid observations of the Supreme Court directing the Executing Court to execute the decree at an early date, the Executing Court on an objection filed by the proforma respondent under section 47 of the Code of Civil Procedure in the matter of execution of the decree held that the decree for eviction was a nullity as fraud was committed by the decree holders on the judgment because some material facts were suppressed by the decree holders/respondents from the Court. Against the aforesaid order of the Executing Court allowing the objection under section 47 of the Code of Civil Procedure, an appeal and an alternative revisional application were filed in this Court which were allowed by a Division Bench of this Court in which one of us (Tarun Chatterjee, J.) was a party by an order dated 13th June, 2000. The Division Bench of this Court directed the Executing Court to proceed with the execution case by granting police help to the decree holders/respondents in terms of the order of the Supreme Court as. noted hereinearlier. Even after this order of the Division Bench of this Court, the decree holders/respondents could not be able to execute the decree in view of the facts now stated hereunder: 8. The appellants as noted hereinearlier, resisted the execution of the decree for eviction obtained against the judgment debtor/proforma respondent by filing applications under Order 21 Rule 101 of the Code of Civil Procedure. In the said applications the cases that were made out by the appellants were inter alia, to the effect that the appellants were inducted as sub-lessees by the predecessor in interests of the proforma respondents as the predecessor in interests of the decree holders/respondents permitted the predecessor in interests of the proforma respondents (lessees) to induct two sub-lessees in the said premises. The appellants alleged that they were inducted by the predecessor in interests of the proforma respondents in their respective premises in the month of September, 1962. According to the appellants, they became premises tenants in respect of the said premises under the proforma respondents as the proforma respondent through his predecessor in interest Ranjit Kr. Dutta (since deceased) was a premises tenant of the said premises and by a registered deed of lease executed by and between the lessor and lessee, the appellants were given permission to induct the appellants and, therefore, the appellants being the notified sub-tenants became the premises tenants and, therefore, the decree obtained against the proforma respondent by the decree holder/respondents were not binding upon them and as such not executable. Upon the aforesaid allegations, the appellants sought for determination of their right, title and interest in the said premises by filing the aforesaid two applications under Order 21 Rule 101 of the Code of Civil Procedure. 9. Objections were filed to the applications filed under Order 21 Rule 101 of the Code of Civil Procedure in which the decree holders contended that the decree passed in the suit for eviction filed by the lessor against the lessee as noted hereinearlier, shall bind the appellants as well, as the appellants were not entitled to be protected as notified sub-tenants under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act") after the commencement of the Act. According to the decree holders/respondents, when a decree was passed against the proforma respondent or his predecessor in interest on the ground of expiry of lease, the appellants claiming themselves to be sub-lessees under the lessee were not entitled to be declared as notified sub-tenants under the provisions of the Act as by the determination of the right, title and interest of the lessees, the right, title and interest of the appellants as sub-lessees are automatically determined. The decree holders/respondents also alleged that even assuming that permission was granted by the original lessor to induct two sub-lessees in the said premises even then the appellants were not entitled to be protected under the provisions of the Act. The decree holders/respondents also alleged that even assuming that permission was granted by the original lessor to induct two sub-lessees in the said premises even then the appellants were not entitled to be protected under the provisions of the Act. It was further alleged in the objection that since notice was not served by the appellants in accordance with section 16(1) of the Act, question of protection under the provisions of the Act could not arise at all. Accordingly, the decree holders/ respondents prayed for dismissal of the applications under Order 21 Rule 101 of the Code of Civil Procedure. 10. The Executing Court by a common judgment and/or order rejected the applications filed under Order 21 Rule 101 of the Code of Civil Procedure and being aggrieved by the said common judgment and/or order, the present two appeals have been preferred by the appellants. 11. We have heard Mr. Ashok Kr. Banerjee, the learned Senior Counsel appearing on behalf of the appellants in FMA No. 144/99 and Mr. Haradhan Banerjee, the learned Senior Counsel appearing on behalf of the appellants in FMA No. 145/99 and Mr. Saktinath Mukherjee, the learned Senior Counsel appearing on behalf of the decree holders/respondents in both the appeals. After hearing the learned Counsel for the parties and going through the materials on record and after considering the background of the present two cases, we are of the view that these two appeals have no merit and accordingly, they must be dismissed. 12. Reasons are as follows : 13. Let us first take up the submission of Mr. Ashok Banerjee, the learned Counsel appearing on behalf of the appellants in FMA No. 144/99. Mr. Ashok Banerjee contended before us that the judgment and/or order under appeal was liable to be set aside as the learned Judge while deciding the question in issue had not at all applied his mind and had not given any reason in the order why he rejected the application filed by he appellants in FMA No. 144/99 which gave rise to a Misc. Case. Accordingly, Mr. Ashok Banerjee contended that the judgment and/or order must be set aside and the matter should be sent back to the Executing Court for a fresh disposal. 14. Mr. Haradhan Banerjee, appearing on behalf of the appellants in FMA No. 145/99 had followed the submission of Mr. Case. Accordingly, Mr. Ashok Banerjee contended that the judgment and/or order must be set aside and the matter should be sent back to the Executing Court for a fresh disposal. 14. Mr. Haradhan Banerjee, appearing on behalf of the appellants in FMA No. 145/99 had followed the submission of Mr. Ashok Banerjee made in connection with FMA No. 144/99 and in addition to the same, he argued before us on the question whether in the facts and circumstances the judgment and/or order of the Executing Court was to be set aside or not as the appellants are entitled to be protected from eviction as notified sub-tenants under the Act. 15. At the first instance, Mr. Haradhan Banerjee urged that in view of the admitted fact that written permission was given by way of a registered deed of lease by the predecessor in interest of the decree holders/respondents to the original lessee to induct two sub-tenants and by virtue of such written permission in the registered deed of lease the appellants were inducted as sub-lessees in the said premises, they were entitled to be protected under the provisions of the Act. In other words Mr. Haradhan Banerjee contended that when the sub-tenancy in respect of the demised premises was attested by the original lessor himself by executing a registered deed of lease, there could be no question that the landlord had not given his previous consent and had not noticed in writing of the sub-tenancies in respect of the demised premises. Accordingly, Mr. Haradhan Banerjee contended that by giving such permission in the registered deed of lease to induct two sub-tenants, the requirements of section 13 read with section 16 of the Act both as regards consent of the lessor and the notice to him, had been satisfied. In support of this contention, Mr. Haradhan Banerjee relied on a decision of the Supreme Court in the case of M/s. Girdhari Lal & Sons. vs. Balbir Singh, AIR 1986 SC 1499 . 16. It was next contended by Mr. In support of this contention, Mr. Haradhan Banerjee relied on a decision of the Supreme Court in the case of M/s. Girdhari Lal & Sons. vs. Balbir Singh, AIR 1986 SC 1499 . 16. It was next contended by Mr. Haradhan Banerjee that in view of section 3(2) of the Act, the original lessee became a tenant in the said premises under the Act and since the appellants were inducted by them as sub-tenants after the coming into force of the Act, the appellants, must be regarded as notified sub-tenants and protected under section 13(2) read with sections 14 and 16 of the Act. 17. Thirdly, it was urged by Mr. Haradhan Banerjee that since the decree for eviction passed against the proforma respondent was a nullity, the appellants who claimed to be notified subtenants were entitled to raise the question of nullity of the decree passed against the proforma respondent in this proceeding and in view of the fact that the decree was a nullity, such a decree was not executable either against the proforma respondent or against the appellants. In support of the contention that the appellants were entitled to raise the question aforementioned, Mr. Haradhan Banerjee relied on a decision of the Madras High Court in the case of Hindustan Petroleum Corpn. Ltd. vs. Vummidi Kannan, AIR 1992 Madras 190. At this stage, Mr. Haradhan Banerjee also raised a short submission. He contended that even assuming that the right, title and interest of the proforma respondent was determined in the previous proceeding, then also such question could be raised by the appellants who were claiming to be sub-lessees in respect of the said premises as the appellants were not parties to the previous suit. In support of this contention, Mr. Haradhan Banerjee relied on a decision of the Supreme Court in the case of Noorduddin vs. Dr. K.L. Anand, (1995) 1 SCC 242 . Reliance was also placed by Mr. Haradhan Banerjee on a decision of the Supreme Court in the case of Shantilal Rampuria and Ors. vs. M/s. Vega Trading Corporation and Ors., (1989) 3 SCC 552 , and another decision of the Supreme Court in the case of Babulal vs. Raj Kumar, (1996) 3 SCC 154 . 18. It was next contended by Mr. Haradhan Banerjee on a decision of the Supreme Court in the case of Shantilal Rampuria and Ors. vs. M/s. Vega Trading Corporation and Ors., (1989) 3 SCC 552 , and another decision of the Supreme Court in the case of Babulal vs. Raj Kumar, (1996) 3 SCC 154 . 18. It was next contended by Mr. Banerjee that as the mandatory provision of section 16(1) of the Act was duly complied with by the appellants, as would be evident from the terms and conditions of the original lease executed by the lessor in favour of the lessee, the Executing Court ought to have held that the appellants must be declared to be notified sub-tenants and, therefore, protected under the provisions of the Act. 19. Lastly, it was contended by Mr. Haradhan Banerjee that as the decree holders/ landlords had consciously waived their right to evict the appellants from the said premises by giving specific permission to the original lessee to induct two sub-tenants in the said premises, the Executing Court ought to have held that the decree holders/ respondents had waived their right to evict the appellants and, therefore, ought to have allowed the application filed by the appellants under Order 21 Rule 101 of the Code of Civil Procedure by holding that the decree was not executable against the appellants. In support of this contention, Mr. Haradhan Banerjee relied on a decision of the Supreme Court in the case of Pulin Brihari Lal vs. Mahadeb Dutta, (1993)1 SCC 629 . 20. Mr. Shaktinath Mukherjee, the learned Senior Counsel, appearing on behalf of the decree holders/respondents contested the submissions so made by Mr. Ashok Kr. Banerjee as well as by Mr. Haradhan Banerjee. Mr. Mukherjee, however contended that since the status of the proforma respondent has already been determined and determined finally in the previous eviction proceeding, the appellants claiming derivative titles from the proforma respondents as sub-lessees under him cannot be said to have become a premises tenant under the provisions of the Act as in the previous eviction proceeding the lessee being the proforma respondent was found to be liable to be evicted on the ground of expiry of lease. Mr. Mukherjee, therefore, contented that the question of becoming notified sub-tenants under the Act could not arise at all in view of determination of the right, title and interest of the original lessee. Accordingly, Mr. Mr. Mukherjee, therefore, contented that the question of becoming notified sub-tenants under the Act could not arise at all in view of determination of the right, title and interest of the original lessee. Accordingly, Mr. Mukherjee contended that with the determination of the right, title and interest of the headlease that is the proforma respondent, the right, title and interest of the appellants if there was any, was also determined. In support of this contention Mr. Mukherjee relied on the decision of the Supreme Court in the case of Bhatia Cooperative Housing Society vs. D.C. Patel, AIR 1953 SC 16 and also on the decision of this Court in the case of Sankar Kr. Ghosh vs. Arun Kr. Dasgupta, 1980(2) CLJ 470 . 21. Apart from that, Mr. Mukherjee contended that from a plain reading of the proviso to section 3(2) of the Act, it would be clear that nothing in the Act other than the provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease. Accordingly, Mr. Mukherjee contended that under proviso to section 3(2) of the Act, West Bengal Premises Tenancy Act, 1956 became inapplicable to the premises in view of the nature of the lease made in favour of the original lessee. Accordingly, Mr. Mukherjee, contended that the alleged sub-tenancy in favour of the appellants cannot attract the provisions of the Act. Though this submission of Mr. Mukherjee was contested by Mr. Ashok Banerjee and Mr. Haradhan Banerjee appearing on behalf of the appellants, we are of the view that this submission of Mr. Mukherjee must succeed. 22. Before we proceed further, we may at this stage consider the proviso to section 3(2) of the Act which reads as under :- "Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, .shall apply to any premises held under such lease." 23. From a plain reading of the aforesaid provisions of the Act, it is, pellucid that under the proviso to section 3(2) of the Act in the case of a non-terminable lease for a period of not less than 20 years, nothing in the Act than the provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under such lease. That being the position and in view of the nature of the lease of the proforma respondent, the Act became inapplicable to the premises and not merely to the head lease. Therefore, in our view, Mr. Mukherjee was fully justified in making the submission that the alleged subtenancies in favour of the appellants cannot attract the provisions of the Act. We could have closed this judgment by making the aforesaid finding, but in view of the elaborate submissions made by the learned Counsel for the parties on the questions noted hereinearlier, we are of the view that it is our duty to consider such contentions of Mr. Haradhan Banerjee. 24. Let us now come back to the first submission of Mr. Haradhan Banerjee. In our view, the first submission of Mr. Haradhan Banerjee as noted herein earlier, has no leg to stand upon. At this stage, it may be reiterated that in the original deed of lease permission was granted by the original lessor to the original lessee to induct two sub-tenants in the said premises. The question is whether by such written permission of the original lessor in the registered deed of lease to induct two sub-tenants, the predecessor in interests of the appellants having been inducted by the predecessor in interest of the proforma respondent, became notified sub-tenants and, therefore, entitled to be protected under the Act. In view of the law settled, this submission of Mr. Haradhan Banerjee cannot at all be accepted. In the case reported in AIR 1986 SC 1499 (supra), the Supreme Court, while dealing with the provisions under sections 17 and 18 of the Delhi Rent Control Act, clearly held that the legislature enacted sections 17 and 18 of the Delhi Rent Control Act to protect the sub-tenants from eviction where a landlord obtains a decree for eviction against the principal tenant. In the said decision, the Supreme Court has also held that showing an awareness of problems of sub-tenants under the general law in the event a decree of eviction is passed against the tenant, the legislature enacted sections 17 and 18 for their protection. Such protection was afforded to subtenants who had been inducted into possession with the consent of the landlord. It was further held by the Supreme Court that while so extending a protecting hand to the sub-tenant the legislature wanted to make sure that sub tenants who had genuinely obtained the consent of the landlord alone should be entitled to that protection. It was further held by the Supreme Court that a sub-tenant would be protected under sections 17 and 18 of the Delhi Rent Control Act if he could establish the consent of the landlord by documentary evidence to which the landlord and the tenant or sub-tenants were the parties. Such consent of the landlord could be established by an agreement or a letter of sub-tenancy in respect of the demised premises, attested by the landlord himself and in such a situation, the requirements of sections 17 and 18 both as regards the consent of the landlord and the notice to him, were satisfied. Applying the aforesaid principles in the facts of the present case, we are of the view that the appellants who were claiming to be sub-tenants in respect of the said premises had not obtained consent of the landlord and, therefore, not entitled to any protection under the Act. In the aforesaid decision of the Supreme Court, there was an agreement or a letter of sub-tenancy in respect of the demised premises which was attested by the landlord himself. In that context, the Supreme Court has hold that there is no magical form in which the consent is to be given nor any charmed form in which the notice is to be sent. In any view of the matter, we are of the view that in the present case since general permission was granted by the lessor to the lessee to sublet, it cannot be held that such general permission granted in the lease-deed to induct two sub-tenants was a consent within the meaning of section 13(2) read with section 16(1) of the Act. In the case reported in 1989(3) SCC 552 (supra), it has been clearly held that general permission granted in the lease deed to sub-let a portion cannot be deemed to be a consent for the purposes of sections 13 and 14 of the West Bengal Premises Tenancy Act as previous consent must be obtained separately for each sub-letting. In the case reported In (1998) 3 SCC 723 (Silverline Forum Put. Ltd. vs. Rajiv Trust and Anr.), the Supreme Court has laid down the principle that section 16(1) of the Act reveals that three additional requisites are also necessary for a sub-tenant to get wiggled into the contours of the sub-section. The Supreme Court has held that they are (1) the sub-tenancy should have been created after the commencement of the W.B. Act; (2) the landlord of the premises should have given written permission to the tenant to create such sub-tenancy; (3) the tenant and the sub-tenant should have notified the landlord of the creation of the sub-tenancy within one month of such creation. In that decision, the Supreme Court has clearly held that the consent given by the landlord to his tenant for creation of sub-tenancy is valid only as between the landlord and his tenant. Such consent cannot be used by a subtenant to create another sub-tenancy under him so as to bind the landlord. It is clear from section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therin can only be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sub-let the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms. In the said decision, the Supreme Court also has held that section 13(3) mandates that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section(2) or sub-section(4) of section13. There is no case for the appellants that they had given any notice to the landlord before the expiry of the time schedule fixed in section 16 of the Act nor had they made a case that they would fall within the purview of the aforesaid two sub-sections in section 13 of the W.B. Act. There is no case for the appellants that they had given any notice to the landlord before the expiry of the time schedule fixed in section 16 of the Act nor had they made a case that they would fall within the purview of the aforesaid two sub-sections in section 13 of the W.B. Act. Be it mentioned herein that admittedly in these two cases, the appellants had not given any notice to the decree holders/respondents about their induction by the original lessee in the demised premises and that being the position and in view of the admitted fact that section 16(1) of the Act is mandatory, we are unable to hold that the appellants had acquired the status of a tenant under the Act after they were inducted as sub-tenants by the original lessee in the said premises. 25. Let us now consider the second submission of Mr. Haradhan Banerjee. According to Mr. Haradhan Banerjee, the appellants being notified sub-tenants and had become tenant by virtue of section 3(2) of the Act, were entitled to be protected under section 13(2) of the Act. In our view, this contention of Mr. Haradhan Banerjee is devoid of any merit. The question of becoming a tenant governed under the Act in the facts and circumstances of the present two cases is not at all acceptable for two reasons. First, the right, title and interest of the original lessee under the deed of lease has already been determined and it has been found that the Act became inapplicable to the said premises. That being the position, section 3(2) of the Act, in our view, is not attracted to the present two cases. That apart, section 13(2) of the Act says that the sub-tenants, if any, referred to in section 16 who have given notice of their sub-tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord. That apart, section 13(2) of the Act says that the sub-tenants, if any, referred to in section 16 who have given notice of their sub-tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord. Therefore, from a plain reading of this section that is section 13(2) of the Act, it is clear to us that protection under the Act would be available to the appellants only in the event of the provisions of section 13(2) being complied with, otherwise section 13(3) of the Act which makes the general principle of law applicable to a sub-tenant would be attracted that is to say a decree for delivery of possession of any premises shall be binding on every sub-tenant. As noted hereinearlier, the protection under the Act to a sub-tenant would be available if section 13(2) is complied with. As noted hereinearlier, the sub-tenants who have given notice of their sub-tenancies to their landlords under section 16 of the Act shall only be protected and shall be made parties to any suit or preceding for the recovery of possession of the demised premises. Otherwise under section 13(3) of the Act, a decree for delivery of possession passed against a tenant shall be binding on every sub-tenant. Let us, therefore, consider whether section 16(1) of the Act has been complied with by the appellants. It is now well settled law that a specific consent in writing in favour of a particular subtenant has been uniformly held to be essential. [See (1998) 3 SCC 723 (supra).] As noted hereinearlier in the case reported in (1998) 3 SCC 723 (supra), the Supreme Court held that consent given by the landlord to his tenant for creation of a sub-tenancy is valid only as between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord. We have already considered the decision of the Supreme Court reported in (1989) 3 SCC 552 in which the Supreme Court has categorically held that a general permission granted in a lease deed to sub-let the portion cannot be deemed to be consent for the purposes of sections 13 and 14 of the Act and previous consent must be obtained separately for each sub-letting. Following the aforesaid principles laid down by the Supreme Court, we have no hesitation in our mind to hold that the second submission of Mr. Haradhan Banerjee cannot at all be accepted. There is another aspect of this matter. We have carefully noticed section 13 and section 16(1) of the Act. Under section 16(1) of the Act, it is made clear that protection to a sub-tenant can be available if a notice has been served under section 16(1) of the Act. In the present two cases, admittedly prior notice was not served by the appellants to the predecessor in interest of the decree holders/respondents. Therefore, in view of the admitted position that the mandatory provision under section 16(1) of the Act was not complied with by the appellants, the question of holding that the appellants became premises tenant under the decree holders/respondents could not arise at all. 26. For the reasons aforesaid, there is no substance in the argument of Mr. Haradhan Banerjee on this score also. 27. Let us now consider the question of nullity of the decree for eviction. Before we proceed further, we can legitimately say that the appellants claiming derivative titles from the proforma respondents cannot be allowed to raise the question of nullity at this stage although they were not made parties to the original suit. It appears from the record that the proforma respondent raised an objection under section 47 of the Code of Civil Procedure alleging that the decree passed against the proforma respondent was a nullity. Although the said objection was allowed by the Executing Court, the same was dismissed by this Court. That being the position, this chapter cannot be re-opened at this stage at the instance of the appellants because on the determination of the right, title and interest of the proforma respondents, the right, title and interest if there was any, of the appellants in respect of the said premises was automatically extinguished. In view of the discussions made hereinabove, the decision cited by Mr. Banerjee on the question of nullity reported in AIR 1992 Madras 190(supra) cannot have any manner of application to the facts and circumstances of the present two cases. So far as the decision cited by Mr. In view of the discussions made hereinabove, the decision cited by Mr. Banerjee on the question of nullity reported in AIR 1992 Madras 190(supra) cannot have any manner of application to the facts and circumstances of the present two cases. So far as the decision cited by Mr. Haradhan Banerjee reported in (1995) 1 SCC 242 is concerned, we do not find any applicability of the said decision in the facts and circumstances of the present case. It cannot be disputed that when a party resisted a decree passed against another party by putting forward his independent claim in the said premises; it is the duty of the Court to decide and adjudicate such claim. In these two cases already adjudication has been made by the Executing Court and in this judgment it is now found that the claim of the sub-tenancy of the appellants cannot be accepted. That being the position, the decision reported in (1995) 1 SCC 242 is not applicable here in these two cases. Similar is the position in respect of the other decision reported in (1996) 3 SCC 154 (supra) on which Mr. Haradhan Banerjee strongly placed reliance. In that decision, it has also been held that when a person was not a party to a decree being in possession of the property and filing an objection against his dispossession, determination of his right, title and interest are required to be adjudicated by the Court. In these two cases, at the risk of repetition, it may be held that such determination has been made and it has been found that the appellants were not entitled to be declared as notified sub-tenants under the decree holders/respondents. Accordingly, this decision of the Supreme Court is not applicable to the facts and circumstances of the present two cases. For the reasons aforesaid and in view of the admitted position that the question that the decree passed in the earlier ejectment suit at the instance of the decree holders was not a nullity, has already been decided in the proceeding under section 47 of the Code of Civil Procedure, it cannot be re-opened at the instance of the appellants who are only claiming derivative titles from the proforma respondent. That being the position, the decision on which Mr. Haradhan Banerjee placed strong reliance being reported in (1996)6 SCC 373 (Sk. Sattar Sk. Mohd. That being the position, the decision on which Mr. Haradhan Banerjee placed strong reliance being reported in (1996)6 SCC 373 (Sk. Sattar Sk. Mohd. vs. Gundappa Amabadas) cannot have any manner of application to the present two cases. In view of our discussions made hereinabove and in view of our findings made that question of nullity of the decree for eviction passed against the proforma respondent cannot at all be allowed to be raised by the appellants and in view of the previous adjudication already made, it is not necessary for us to consider the submission of Mr. Haradhan Banerjee regarding the applicability of section 108 (i)(j) of the Transfer of Property Act read with section 117 of the Transfer of Property Act and also to consider the definition of "landlord" within the meaning of section 2(d) of the Act. 28. Let us now consider the last submission of Mr. Haradhan Banerjee on the question whether by executing a deed of lease permitting the original lessee to induct sub-tenants, the original decree holders/respondents had intentionally relinquished their right to evict the tenant on the ground of sub-letting. In the case reported in 1993(1) SCC 629 , (supra) it has been held that there is a clear mandate in section 13(1)(a) of the Act that the protection against the eviction to the tenant shall not be available in case the tenant transfers, assigns or sub-let in whole or in part the premises held by him without the previous consent in writing of the landlord. When there was no previous consent in writing of the landlord for creation of sub-tenancies, it shall be a ground for eviction in terms of section 13(1)(a) of the Act. The Supreme Court in that decision could not accept the contention that the provision as regards consent may be treated as mandatory but so far as the writing part of the consent is concerned the same may be treated as directory. The Supreme Court has held in that decision that even in case of creation of sub-tenancies with the consent of the landlord in writing, it was necessary to follow the further procedure prescribed under section 16(1) of the Act. In the said decision, the Supreme Court has further held that mere knowledge and/or acceptance of rent cannot defeat the right of the landlord to get a decree for ejectment on the ground of sub-letting. In the said decision, the Supreme Court has further held that mere knowledge and/or acceptance of rent cannot defeat the right of the landlord to get a decree for ejectment on the ground of sub-letting. In our view, the question of waiver in the facts and circumstances of the two cases cannot arise at all and, therefore, in the facts of these two cases, it cannot be held that the ratio of decision reported in (1993) 1 SCC 629 could be applied in the present cases. In that decision, in the facts of that case, the Supreme Court has held that the landlord has waived their right to evict the tenant on the ground of sub-letting as the landlord had accepted the rent being fully conscious that by this Act they were relinquishing the right of eviction available to them on the ground of sub-letting under section 13(1)(a) of the Act. In the present two cases, the question of relinquishing the right of eviction available to the decree holders/respondents on the ground of sub-letting did not arise at all. As noted hereinearlier, general permission to the tenant to induct sub-tenants was not sufficient in law and previous consent in writing of the landlord in respect of each sub-letting was separately essential [See (1989) 3 SCC 552 (supra)]. That being the position, we are unable to hold that question of waiver in the facts and circumstances of the present two cases cannot arise at all. Accordingly, the last submission of Mr. Haradhan Banerjee, in our view, is of no substance and, therefore, rejected. 29. No other point was raised on behalf of the parties. 30. The appeals are, therefore, dismissed. 31. The Executing Court is directed to proceed with the execution cases and see that the decree holders now get possession of the decretal premises in execution of the same. 32. There will be no order as to costs. Urgent xeroxed certified copy be given to the parties, if applied for. Asit Kumar Bisi, J.: I agree. Appeals dismissed.