S S B PROJECTS LTD Vs. CHIRADEEP BHATTACHARYA

JUDGEMENT

(1.) A question has cropped up in this revisional application as to whether an order granting permission to sell the vendors interest in the property to his purchaser, if the vendor so wishes, is capable of execution under order 21 Rule 32 of the Code of Civil procedure? The proposed purchaser viz. the defendant no.4 filed an application under Order 21 Rule 32 of the Civil Procedure Code for execution of such an order against his vendor viz. the defendant no.1. The learned Trial Judge rejected the said application under Order 21 Rule 32 of the Code of Civil procedure filed by the defendant no.4, by holding inter alia that such an order is not capable of execution. While rejecting the said application, the learned Trial Judge observed that if the defendant no.1 (vendor) violates the contract for sale, other remedy was open to the proposed purchaser for enforcement of the said contract. Thus, the learned Trial Judge was of the view that the relief which was claimed by the proposed purchaser (petitioner herein) cannot be granted to him as per Order 21 Rule 32.

(2.) The said order which was passed by the learned Trial Judge on 3rd April, 2009 in T.S. No.113 of 2006 is under challenge under Article 227 of the Constitution of India before this Court at the instance of the proposed purchaser namely the defendant nos.4 along with its constituted attorneys who were joined as defendant nos.5 and 6 in the said suit. Heard Mr. Roy Chowdhury, learned Senior Counsel appearing for the petitioner (proposed purchaser), Mr. Aniruddha Chatterjee learned Advocate appearing for the opposite party no.2 (vendor) and Mr. Dipankar Ghosh, learned Advocate appearing for the opposite party no.1/plaintiff (vendors creditor) herein.

(3.) Let me now give a very short background of this case which is necessary for the purpose of considering the present issue only:- The plaintiff lent a sum of Rs.7,54,910/- to the defendant no.1 who accepted such loan not only by executing a promissory note in favour of the petitioners herein but also by creating a charge on his interest in the suit property being premises no.39A Ekbalpore Road, Kolkata 700023 for repayment of the said loan. Since the defendant no.1 failed to repay the said loan amount, the instant suit was filed by the plaintiff against the defendant nos.1,2 and 3 as well as the petitioners herein inter alia praying for a decree for declaration of the charge on the suit property and for realization of the loan amount together with interest. Though the said loan was taken by the defendant no.1 alone from the plaintiff by creating a charge on his share in the suit property for repayment of the said loan but, still then, the defendant nos.2 and 3 were impleaded therein as the suit property is a joint property belonging to the three brothers namely the defendant nos.1, 2 and 3. The defendant no.4 was joined as a party in the said suit as the said defendant allegedly entered into an agreement for development of the suit property with all the said three brothers for the consideration mentioned in the agreement entered between them on 16th May, 2006 and also because of the fact that the defendant no.1 also allegedly entered into another agreement with the defendant no.4 for transfer his allocation in the proposed multistoried building to be constructed by the defendant no.4 on the suit property, in favour of the said defendant for the consideration mentioned in the said agreement. The defendant nos.5 and 6 who were the constituted attorneys of the said defendant no.4 were also joined as parties in the said suit.