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6. By passing the impugned order dated 26.08.2011, the executing Court also rejected the Ejectment Execution Case filed by the decree-holder being No. 212 of 2007 with observation that the First Appellate Court has already dismissed/disposed of the appeal with a note that the plaintiff/decree-holder had already got possession in respect of the suit premises.

7. After getting the decree of ejectment in connection with Ejectment Suit No. 1134 of 2002 the decree-holder/petitioner (herein) put the decree into execution being Ejectment Execution Case No. 212 of 2007. In fact father of the opposite party no. 7 Mahendra Kumar Jain was not a party to the said ejectment suit instituted by the plaintiff. When the decree passed in the ejectment suit was put into execution then Mahendra Kumar Jain filed an application under Order I Rule 10 (2) of CPC with prayer for adding himself as a necessary party in the said execution case which was turned down by the learned Executing Court. Thereafter another application was filed by the said Mahendra Kumar under Order XXI Rule 97, 98, 100 and 101 read with Section 151 of CPC in the said execution case being no. 212 of 2007 and the said application was registered as Miscellaneous Case being No. 127 of 2008 and after his death a substitution application was filed on behalf of the Satyendra Kumar Jain claiming himself as a sub-tenant in the ground floor of the said suit premises and it was allowed by the learned Trial Court. So, it is clear that the father of the opposite party no. 7 Mahendra Kumar Jain was not a party to the Ejectment Execution Case No. 212 of 2008 filed by the petitioner/plaintiff/decree-holder but the learned Trial Court dismissed the said application relying upon the submission made by the petitioner in Misc. Case No. 127 of 2008 as well as banking upon the order passed by the Appellate Court in connection with Title Appeal No. 63 of 2007. It is apparent from the materials on record that the appeal was preferred by one of the judgment-debtors/defendants in connection with Ejectment Suit No. 1134 of 2002 and in the said appeal learned Advocate for the respondent submitted that the said judgment debtor/appellant had already delivered vacant and khas possession of the suit premises. It is nowhere in the said order that the decree-holder got possession of the entire suit premises. Moreover, Appellate Court did not pass any order directing upon the executing Court to dismiss/dispose of the said application in view of order passed by the Appellate Court dated 28.02.2008.

9. It further appears that the misc. case no. 127 of 2008 was initiated upon an application made by the father of the opposite party no. 7 (herein) under the provision of Order XXI Rule 97, 98, 99,100 and 101 of the CPC. It appears that neither opposite party no. 7 nor his father Mahendra Kumar Jain was a party to the Ejectment Suit No. 1134 of 2002 or a party to the Ejectment Execution Case No. 212 of 2007, despite the learned Trial Court rejected the execution case instituted by the present petitioner/decree-holder. The executing Court failed to understand the actual meaning and purport of the order dated 21.02.2008 passed by the Appellate Court in connection with Title Appeal No. 63 of 2007. So, the Execution Case No. 212 of 2007 should not be dismissed upon a petition filed by a person who is neither a party to the suit nor a party to the ejectment execution case. It is no doubt that the execution case filed by the decree-holder will be proceeded on its own way and it should not be dismissed or disposed of on an application by a person who is not connected in any way to the suit or the execution proceeding. The application filed by the opposite party no. 7 was a proceeding under the provision of Order XXI Rule 97, 98 99, 100 and 101 of CPC and it should be decided upon the grounds taken by that petitioner. The said execution case being no. 212 of 2007 was disposed of on the finding of the appellate Court and the said appeal was instituted by one of the judgment debtors which was subsequently, compromised and delivered possession in favour of the decree- holder.

10. So, I am of the view the impugned order did not adjudicate any question regarding recovery of vacant possession by the decree-holder in respect of the whole of the suit premises, which factum is to be seen, examined and executed by the Executing Court.

11. Learned Executing Court was erred in law in ignoring the fact that the Misc. Case No. 127 of 2008 was filed by the predecessor in interest of the opposite party no.7 in order to establish his right in respect of the ground floor of the suit premises in the capacity of a sub tenant under the judgement debtors and his application with prayer for adding himself as a party in the Ejectment Execution Case No. 212 of 2007 was rejected. So, the execution case should not have been dismissed upon the petition who is virtually an outsider to the execution case and whose rights and interests had not been adjudicated in respect of the case premises.

13. Accordingly, the impugned order dated 26.08.2011 passed by the Learned Judge, 6th Bench, Small Causes Court, Calcutta in Ejectment Execution Case No. 212 of 2007 is hereby set aside.

14. C.O. being No. 408 of 2012 is hereby allowed but without any order as to costs.

15. Learned Trial Court is hereby directed to dispose of the execution case being Ejectment Execution Case No. 212 of 2007 as expeditiously as possible preferably within 6 months from the communication of this order.