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an application for execution of a decree for ejectment being Ejectment Execution Case No.113 of 2002. In that execution proceeding, the petitioner appeared and filed an application under Order 21 Rule 101 read with Section 151 of the C.P.C. contending, inter alia, that the decree passed in the Ejectment Suit No.297 of 1981 by the learned Judge, Eleventh Bench, City Civil Court, Calcutta is illegal, void, inoperative and not binding upon the petitioner on the ground that the said decree had been obtained by practising fraud upon the Court. That application was converted into the Misc. Case No.128 of 2009. It was contested by the opposite parties. Ultimately, the said misc. case was dismissed on contest with costs of Rs.500/- holding that the same is not maintainable in its present form and law. Being aggrieved, the petitioner preferred a misc. appeal being Misc. Appeal No.11 of 2010 which was also dismissed by the learned Chief Judge, City Civil Court, Calcutta. Being aggrieved, the petitioner has preferred this revisional application.

Now, the point for consideration is whether the impugned order should be sustained.

Upon hearing the submission of the learned Advocates of both the sides and on perusal of the materials on record, I find that the plaintiffs / opposite parties instituted a suit for ejectment being Ejectment Suit No.297 of 1981 before the learned Judge, Eleventh Bench, City Civil Court, Calcutta. In that suit, the tenants including the husband of the petitioner entered appearance. While the other tenants contested the said suit, the husband of the petitioner did not contest the said suit. The plaintiffs got a decree of ejectment against the tenants. The other tenants except the husband of the petitioner preferred an appeal being F.A. No.40 of 1993 before the Hon'ble Court, Calcutta, making the husband of the petitioner as proforma respondent. The husband of the petitioner did not contest the said first appeal. During pendency of the first appeal before this Hon'ble Court, the husband of the petitioner died. The first appeal preferred by the other tenants was also dismissed affirming the decree of ejectment passed by the learned Trial Judge. Thereafter, the aforesaid execution case was filed for recovery of possession by the opposite parties. At that time, the petitioner came up with the application under Order 22 Rule 101 of the C.P.C. The decreeholders filed an objection. Upon due consideration of the materials placed in support of their respective contentions, the learned executing Court dismissed the said application. Thereafter, the misc. appeal preferred against the said order of dismissal of the application under Order 21 Rule 101 of the C.P.C. was also dismissed. Thus, I find that the husband of the petitioner was not a stranger to the suit filed by the decreeholders. He was also a tenant under the landlords in the said suit for ejectment. The husband entered appearance in the said suit but did not contest the suit at all. As such, when the decree for ejectment was passed, the other tenants while preferred a first appeal being F.A. No.40 of 1993 the husband of the petitioner was made the proforma respondent, but, he did not contest the said first appeal. The other tenants including the husband of the petitioner, namely, Sachipati Nath Mitra are full brothers and they were on the same footing as tenants. The brothers of Sachipati Nath Mitra while filed the appeal made Sachipati Nath Mitra as proforma respondent inasmuch as he did not take any interest in the matter. Subsequently, during pendency of the first appeal, Sachipati Nath Mitra died. It was incumbent upon the other appellants to substitute the legal heirs of the said deceased proforma respondent. But they did not do so. But the petitioner came up to resist the writ of delivery of possession when the decree was going to be executed. This is nothing but a collusion between the other tenants and the petitioner to frustrate the execution of the decree. Here the allegation of the petitioner is that there was a collusion between the other tenants and the decreeholders, but, this contention, I hold, cannot be believed at all. The other tenants had full knowledge of the death of Sachipati Nath Mitra. But the other tenants, that is, the appellants did not take any step for substitution in the said appeal. It may be pointed out that the original suit was decreed on March 9, 1991. The judgment debtors preferred an appeal before the Hon'ble Court against the said judgment and decree and the appeal was dismissed after contested hearing on January 21, 2008. Though the husband of the petitioner was impleaded as proforma respondent, he did not contest the said appeal at all. The husband of the petitioner was very much aware of the institution of the suit and the appeal. But he preferred not to contest the said suit and the appeal.

In the instant case, the petitioner has come up when the writ of delivery of possession has been issued for execution of the ejectment decree. The petitioner has not been dispossessed as yet. The husband of the petitioner was very much aware of the proceedings for ejectment and the appeal arising thereof but he did not contest the same. Therefore, the right, title and interest of the husband of the petitioner with regard to the premises in suit have been decided finally with the disposal of the first appeal by the Hon'ble High Court, Calcutta. The petitioner has stepped in the shoes of her husband. So, she is bound by the decree passed by the learned Trial Judge. That decree has been affirmed by the appellate court. There is no scope for the petitioner to re-agitate the matter which has already been settled in the suit between the landlord and the tenants including the husband of the petitioner. So, the petitioner has no independent right, title and interest with regard to the premises under execution but through her husband. Therefore, the aforesaid decisions referred to by Mr. Banerjee, shall not apply in the instant situation and the present petitioner has no right to initiate the misc. case under the provisions of Order 21 Rule 101 of the C.P.C. Her application under Order 21 Rule 101 of the C.P.C. is not, therefore, maintainable. Both the learned Courts below have arrived at such concurrent views based on materials. There is no perversity in the impugned order.