Calcutta High Court
Smt. Lalita Almal vs Smt. Jyotsna Debi & Ors. on 27 July, 1999
Equivalent citations: (1999)3CALLT131(HC)
Author: S. B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S. B. Sinha, J.
1. The plaintiff-decree-holder is the appellant. She filed a suit in this Court for eviction of one Chandra Bhusan Chatterjee which was registered as Civil Suit No. 1646 of 1993. The said suit was decreed. The said decree was put in execution.
2. The respondent herein who claims to be a tenant of the appellant has filed another suit questioning the validity of the said decree. He filed an application for injunction. The said prayer for injunction was refused. Thereafter he filed an application in the execution case raising the same contention which was raised in his suit to the effect that he was a tenant in respect of two rooms on the ground floor and one room on the top floor of the said premises.
3. According to the respondent, as his tenancy is protected under the West Bengal Premises Tenancy Act, in terms of a letter dated 23rd March, 1963 he could not be evicted in execution of the said decree to which he was not a party. The learned trial Judge upon referring to the provision of section 47 as well as Order 21 Rules 97, 99, 101, 103, and 104 of the Code of Civil Procedure and stating that as a suit had been pending, the application should be allowed holding:-
"Having regard to the aforesaid and for the foregoing reasons this application by the applicant must succeed. Accordingly, the ad-interim order dated 25th November, 1998 is hereby confirmed in terms of prayer (a) of the Master's Summons subject to the condition that the same shall be limited to the rooms at premises No. 7, Garstin Place, Calcutta to which the applicant has laid claim and which are the subject matter of his said City Civil Court suit.
The order passed on the present application shall, however, abide by the result of the Title Suit No. 498 of 1986 pending in the City Civil Court at Calcutta."
4. Mr. Banerjee led by Mr. Pratap Chatterjee has raised a short question in support of the said application. The learned counsel submitted that a bare perusal of Rule 104 of Order 21 of the Code of Civil Procedure would show that the same contemplated that an order is passed under Rule 101 or Rule 103 thereof but as in the instant case no such order had been passed, the said provision has no application. The learned counsel submitted that all the question between the parties should have been decided in the execution proceedings itself and the respondent herein having not filed any application, under Order 21 Rule 97 of the Code of Civil Procedure, a miscellaneous application filed by him was not maintainable.
5. Mr. Dutta, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the phraseology used in Order 21 Rules 97, 98 and 99 would clearly go to show that the same are not attracted in a case where a third party claims independent right, title and interest in respect of the property in question in respect whereof a decree has been passed.
6. Order 21 Rule 104 of the Code of Civil procedure read thus :-
"Order under Rule 101 or Rule 103 to be subject to the result of pending suit. Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property."
7. A bare perusal of the said provision envisages that any order made under Rules 101 or 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceedings in which such order is made. Thus pendency of a suit alone independent of an execution proceeding is not covered by Rule 104 of Order 21. The said provision contemplated a suit which may be pending when an order is passed either under Rules 101 and 103 of Order 21 of the Code of Civil Procedure. In the instant case, admittedly no proceeding under Order 21 Rule 97 or Order 21 Rule 99 had been filed so as to enable the executing court to determine the question envisaged under Rule 101 of the Code of Civil Procedure nor any application had been adjudicated upon under Rule 98 or 99 of the Code of Civil Procedure so as to attract the provision of Rule 103 thereof.
8. Thus, there cannot be any doubt whatsoever that the entire premise on the basis whereof the impugned order had been passed is non est in the eye of law. Furthermore, it is now well settled in view of the several Supreme Court decisions as also the decisions of this court that all questions between the parties should be raised and adjudicated upon in the execution proceedings. Reference in this connection may be made to Shreenath and Anr. v. Rajesh & Ors, ; Ghasi Ram & Ors. v. Chait Ram Saini & Ors. ; Nooruddin v. Dr. K. L. Anand ; Rubiren Engineering Corporation v. Abhoy Singh Suran & Ors. reported in 1998(2) CHN 8 and State of West Bengal v. Sri Partha Basu & Ors. reported in 1997(2) CHN 387,
9. In any event assuming that the respondent's suit was maintainable as he had not been able to obtain an order of injunction therin, his application in the execution case not being one under Order 21 Rule 97 of the Code of Civil Procedure should not have been entertained as it is well known that what cannot be done directly should not be allowed to be done indirectly.
For the reasons aforementioned the impugned order cannot be sustained which is accordingly set aside. The appeal is allowed with costs. Counsels fee assessed at 200 gms.
M. H. S. Ansari, J.
10. I agree.
11. Appeal allowed