Indian Kanoon - Search engine for Indian Law

The suits were heard analogously and the learned Judge of the trial Court by his common judgment and decree dated 31.08.1971 dismissed T.S. No. 150 of 1971 and decreed T.S. No. 168 of 1970. In the process of rendering judgment, the learned Judge returned certain important findings to the effect that Panchanan had acquired no title from Ramkrissen by purchase; that Ramkrissen was a tenant under Madan Chowdhury, vendor of the opposite party no.1; that after purchase of the property from Madan Chowdhury by the opposite party no.1, there was no attornment of tenancy and, therefore, Ramkrissen could not be treated to be a tenant under the opposite party no.1; and that possession of Ramkrissen vis-a-vis the suit property was that of a trespasser. It is not in dispute that separate appeals were preferred against the judgment and decree in the aforesaid suits and the first appellate Court allowed the appeals. It is also not in dispute that second appeals having been preferred by the opposite party no.1 against the judgment and decree of the first appellate Court, a learned Judge of this Court by judgment dated 23.12.2003 affirmed the view taken by the trial Court and, thereby, allowed the second appeals. Special Leave Petition filed in the Supreme Court against the second appellate judgment did not succeed. The opposite party no.1, after dismissal of the Special Leave Petition, put the decree for ejectment of Ramkissen into execution. Ramkissen had expired in the meantime and is being represented by his heirs and representatives. In course of the execution case, the petitioners, who are the representatives of Panchanan, filed an application under Section 47 of the Code of Civil Procedure, giving rise to Misc. Case No. 5 of 2007. They also filed an application under Order 6 Rule 17 of the Code for incorporating provisions contained in Order 21 Rules 100, 101 and 98 in the cause title of the application under Section 47 of the Code. The learned Judge of the executing Court did not consider the application and by order dated 21.01.2011 kept the same in abeyance and fixed a date in early February, for hearing. The order was not challenged by the petitioners. Hearing on the next day was adjourned but ultimately, the application under Section 47 of the Code was heard by the learned Judge on 28.02.2011. Misc. Case No. 5 of 2007 stood rejected on contest by the order passed on that date. This order forms the subject matter of challenge in the present revisional application.