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Mr. Krishnendu Banerjee Mr. Asit Chakraborty Mr. Priyabrata Thakur Mr. Subhajit Panja Heard On: 08.08.2013, 13.08.2013, 19.08.2013, 21.08.2013 & 22.08.2013 Judgement On: 11.12.2013 Asim Kumar Mondal, J.: The revisional application has been filed by Smt. Pratima Kundu challenging the legality and propriety of the order dated August 16th, 2012 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore in Misc. Case No. 1050 of 2010 arising out of Ejectment Execution Case No. 29 of 2009. The case of the petitioner in short is that the petitioner is a member of Naba Kailash Co-operative Housing Society Ltd.. Flat No. 10/C was allotted to her by the Managing Committee of opposite party No. 2 i.e. Naba Kailash Co-operative Housing Society against payment of valuable consideration. A deed of conveyance was accordingly executed. The petitioner being sole and absolute owner of the said flat is occupying the same since 1988. The opposite party No. 1 Ashoke Kumar Tibriwal raised a dispute against the opposite party No. 2 and 3 i.e. the Secretary and the co-operative society before register of co-operative society under Section 95 of the West Bengal Co-operative Societies Act, 1983, which was registered as 82/RCS/88-89 claiming for declaration that the resolution for cessation of membership and cancellation of Flat No. 10/C is illegal and inoperative. The opposite party No. 1 got the order in his favour. The opposite party No. 1 raised another dispute before the arbitrator which was registered as dispute case No. 15/RCS/95-96 against the opposite party No. 2 and 3 praying for possession of the flat No. 10/C. The arbitrator directed the opposite party No. 2 and 3 to vacate and hand over possession of the said flat to opposite party No. 1. No appeal was preferred by the opposite party No. 2 and 3.

The opposite party No. 1 put the said order / award into execution before the learned Civil Judge (Senior Division) at Alipore which was registered as Ejectment Execution Case No. 29 of 2009 and in the said execution case date for possession has been fixed. The opposite party No. 1 filed an application for police help under Order 21 Rule 97 of the Civil Procedure Code which was registered as Misc. Case No. 699 of 2010.

The petitioner herein filed an application under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure for determination of her interest in respect of said flat before the Court below which was registered as Misc. Case No. 1050 of 2010. The said Misc. Case is still pending for disposal.

It is alleged by the petitioner that the ejectment execution case was filed before the learned Court below after lapse of 12 years and as such same is hopelessly barred by limitation.

The decree-holder / opposite party No. 1 filed an application under Section 15 of the Limitation Act for condonation of delay along with the execution application but surprisingly the said application under Section 15 of the Limitation Act is still pending for disposal although the execution proceeding is over.

Mr. Krishnendu Banerjee, Mr. Asit Chakraborty, Mr. Priyabrata Thakur and Mr. Subhajit Panja appear on behalf of the opposite party No. 1 and submits that the petitioner has got no locus standi to raise any objection in the execution proceeding being No. 29 of 2009 as she was not the party in original dispute case. Mr. Banerjee further submits that the petitioner has no reason to be aggrieved, since she claims in her purported case that she has been in possession of the flat in question and admittedly she did not file any dispute or appeal. She has prayed for declaration of her right, title and interest as absolute owner of the demised flat in her Misc. Case No. 1050 of 2010. So, she has no locus standi to say anything in execution case No. 29 of 2009 which is in between the opposite party No. 1 and opposite party No. 2 and 3. Mr. Banerjee further submits that the petitioner is to prove her own case and she cannot raise a question that the execution case is time barred since admittedly she has nothing to do with the said execution case. Mr. Banerjee referred and handed over the photocopies of order passed by this Court in C.O. No. 2605 of 2011 and submits that the petitioner brought similar allegation in the said revisional application which was dismissed. Mr. Banerjee further submits that the ejectment execution case No. 29 of 2009 has been filed before the learned Trial court well within the period of limitation of 12 years, if the time during which proceedings before the Hon'ble Court were suspended be excluded in computing the period of limitation prescribed for execution of the decree and accordingly the petition under Section 15 of the Limitation Act was filed explaining the situations and praying for condonation of delay. Mr. Banerjee submits that one of the Co-ordinate Bench of this Court in C.O. No. 2605 of 2011 in an application under Article 227 of the Constitution of India filed by the petitioner herein has been pleased to hold and observe that learned Trial Judge is correct in holding that the petitioner is not entitled to move any such application in the execution proceeding for removal of defect. The petitioner is entitled to seek remedy under Order 21 Rule 99 of the Civil Procedure Code in Misc. Case No. 1050 of 2011 if she satisfied the Court regarding her right. It is needless to mention that in that event she would be entitled to an order accordingly.