ASGAR KHAN Vs. SULTAN AHMED AND ORS

JUDGEMENT

(1.) This application is at the instance of the decreeholder and is directed against the order dated No. 141 December 15, 2005 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Misc. Case No. 23 of 2004 arising out of the Title Execution Case No. 18 of 1994 thereby allowing applications under Order 6 Rule 17 of the Code of Code of Civil Procedure and under Order 1 Rule 10 of the Code of Code of Civil Procedure

(2.) The short fact is that the Petitioner instituted a title suit being Title Suit No. 476 of 1969 for eviction on the ground of subletting against the predecessor-in-interest of the proforma opposite party No. 2 before the learned Munsif, First Court, Sealdah and that suit was decreed on contest directing the proforma opposite party to deliver vacant possession of the premises in suit in favour of the Petitioner within three months from the date of decree dated December 23, 1993. The judgment debtors having refused to deliver vacant possession, the Petitioner had no other alternative but to file a title execution case being Title Execution Case No. 18 of 1994. It may be mentioned herein that the appeal preferred by the judgment debtors was also dismissed. Even the second appeal was also dismissed. When the Petitioner was to get possession under the circumstances, the proforma opposite party No. 2, i.e. a judgment debtor filed an application under Section 47 of the Code of Code of Civil Procedure and that application being Misc. Case No. 19 of 2001 was also dismissed on contest with costs. Subsequently, the opposite party No. 1 filed an application under Order 21 Rule 99, 100 and 101 of the Code of Code of Civil Procedure which was registered as Misc. Case No. 23 of 2004. The Petitioner filed an objection to that application and it is pending for hearing. In that misc. case, the two applications; one for amendment of the misc. case and another for addition of parties have been filed and those applications have been allowed by the impugned order. Being aggrieved, this application has been preferred by the decreeholder.

(3.) Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that this application is an instance as to how the decree of recovery of possession can be flouted at the instance of the judgment debtors. The suit for recovery of possession was instituted in the year of 1969 and the suit was decreed on contest by the learned Trial Judge on December 23, 1993 directing the Defendants to vacate the premises in suit, as described in the schedule of the plaint, within three months from the date of the passing of the decree. The judgment debtors preferred the first appeal and the second appeal subsequently with regard to that suit and in all stages, i.e. up to the stage this Hon'ble Court, the judgment debtors lost the legal battle. Thereafter when the execution case was filed for taking recovery of possession, the judgment debtors filed an application under Section 47 of the Code of Code of Civil Procedure raising the question of non-executability of the decree. That application was dismissed on contest with costs. Thereafter, another misc. case being Misc. Case No. 23 of 2004 was filed resisting the execution of the decree stating several grounds. In that application, the judgment debtors filed the application for amendment of the said misc. case in the line as appearing at page 40 (annexure "G") to the application praying for incorporation of several paragraphs consisting of 13 pages. Another application for addition of parties under Order 1 Rule 10 of the Code of Code of Civil Procedure was filed (as appearing at page 56 as annexure to the application). This application lays down the names of 11 persons to be added as parties, in short the prayer is that the premises in suit is a thika tenancy property and that it is owned by the wakf estate. So, the joint mutuwallis to the wakf estate including the chairman of the Board of Wakfs and other officers and persons are the necessary party to the misc. case. If the applications for amendment as well as addition of parties are read together, it will be crystal clear that the opposite partis have taken such steps so that the said misc. case could well proceed for an unending period with the sole objection to frustrate the decree of recovery of possession obtained by the landlord against his tenant. Those applications have been filed only to refuse delivery of possession as per decree obtained in the year 1993.