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1. The respondent No. 1 as plaintiff filed a Title Suit in the City Civil Court, Calcutta against the appellant and the respondent No. 2 making the respondent No. 3 as a pro-forma defendant Inter alia, for a declaration that the decree passed in the ejectment Suit No. 514 of 1987 by the learned judge, XIth Bench, City Civil Court, Calcutta was void, inoperative and not binding upon the respondent No.l as also upon the respondent Nos. 2 and 3, for further declaration that the respondent No. 1 and the other respondents were joint tenants in respect of the suit premises, and for permanent injunction. The said suit was numbered as Title Suit No. 700 of 1988 of the court of the learned judge. III Bench, City Civil Court, Calcutta. It was alleged inter alia, in the plaint that one Shyama Das Chatterjee, since deceased, was the owner of premises No. 125, Keshab Chandra Sen Street, Calcutta and a tenancy was held in respect of the same premises in the name of the plaintiffs elder brother Nalini Kanta Majumdar jointly with his friend Purunjit Biswas. The plaintiff with his family came to Calcutta in or about the year 1946 and started living with his elder brother in the suit premises and though the rent was being paid by the plaintiffs mother, who lived in the suit premises along with her three sons namely, the plaintiff, the defendant No.l and also the proforma defendant but the rent receipts were continued to be issued in the name of Nalini Kanta Majumdar as he was the eldest brother. After the death of the plaintiffs mother in the year 1962, all the brothers used to contribute towards the rent, though the rent receipts were being issued by the landlord in the name of Nalini Kanta Mazumdar alone. In or about the year 1986, the defendant No. 2 who is the appellant before this court, purchased the suit premises by a registered deed of conveyance in a clandestine manner and behind the back of the plaintiff and the proforma defendant and in collusion with his father the defendant No.l, filed Ejectment Suit No. 514 of 1987 before the learned judge, Xlth Bench, City Civil Court, Calcutta and obtained an ex-parte decree on 9th February, 1986 by practising fraud upon the court. The said decree was put into execution and a false report was submitted by manipulation and/or collusion with the court bailiff that Nalini Kanta Mazumdar appeared to have given a mock resistance just to facilitate the prayer for police help. Though the plaintiff was a joint tenant of the suit premises, no notice of the suit was served upon the plaintiff. In the said Title Suit No. 700 of 1988, the plaintiff-respondent No.l also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure Inter alia, praying for temporary injunction against the defendant No. 2 appellant restraining him from proceeding further with the Ejectment Execution Case No. 9 of 1989 pending in the court of the learned judge, XI Bench, City Civil Court, Calcutta till the disposal of the suit. The said application was objected to by the defendant No. 2-appellant as well as by the respondent No. 2, Inter alia, denying the plaintiffs allegations regarding the Joint tenancy. The learned judge, IIIrd Bench, City Civil Court, Calcutta, however, by his Order No. 27 dated 28th February, 1989 allowed the plaintiff respondent No. l's said application for temporary injunction holding Inter alia, that the plaintiff had got a prima facie case to go to trial. The said order is the subject matter of challenge in the present appeal by the defendant No. 1 appellant.

8. In the present case, the suit filed by the plaintiff-respondent No. 1 in which the impugned order of temporary injunction has been passed, was not pending on the date when the execution proceeding being Ejectment Execution Case No. 9 of 1988 was filed by the decree holder defendant No. 1-appellant for execution the ejectment decree obtained in Ejectment Suit No. 514 of 1987 as would be clearly evident from paragraph No. 15 of the plaint itself filed in Title Suit No. 700 of 1988, which is quoted below;

9. In paragraph No. 16 of the said suit, the plaintiff-respondent No. 1 has also reiterated the said facts and prayer (a) of the said application for temporary injunction which is reproduced below, would also be relevant for the said purpose.

"(a):-Temporary injunction is granted restraining the defendant/opp. party No. 2 from disturbing and/or Interferring and/or intermiddling with the joint possession of the petitioner along with the proforma defendant in respect of the suit premises as per schedule given to the plaint by executing the decree in Ejectment Suit No. 514 of 1987 and by in Ejectment Execution Case No. 9 of 1988."

12. However, the points decided in the said case in Krishna Kumar v. Union of India (supra) are not at all relevant for deciding the present appeal. Rule 104 of Order XXI of the Code of Civil Procedure that every order made under Rule 101 or Rule 103 of the Code of Civil Procedure, shall be subject to the result of any suit that may be 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 of the Code of Civil Procedure is made as sought to establish a right which he claims to be the present possession of the property. The provisions of Order XXI Rule 104 of the Code of Civil Procedure, cannot be called 'stare a decises' so far as the present case is concerned in any manner whatsoever, inasmuch as, by the decision in Babu Lal v. Raj Kumar (supra), the Hon'ble Supreme Court has not sought to unsettle the statutory provisions of Order XXI Rule 104 of the Code of Civil Procedure in any manner at all. In the present case, admittedly, an ejectment decree was already passed and an ejectment execution proceeding was already pending, when the suit was filed by the plaintiff-respondent No. 1 challenging the said decree in which, the impugned temporary order of injunction was granted. The expression "proceeding" as stated in Order XXI Rule 104 of the Code, according to us would mean an execution proceeding.