LUXMI PHARMACEUTICAL WORKS Vs. RAJAT BARUA

JUDGEMENT

(1.) The instant second miscellaneous appeal is filed by the judgment debtor assailing the order dated 19th March, 2005 passed by the learned Additional District Judge, Fast Track, 1st Court at Alipore in Misc Appeal No.284 of 2004 affirming the order dated 17th July, 2004 passed by the learned Civil Judge (Senior Division) in Misc Case No.4 of 2003 arising out of an application under Section 47 read with Order XXI Rules 97, 98, 99, 101 and Section 151 of the Code of Civil Procedure.

(2.) It is important to note that M/s Laxmi Pharmaceutical Works, appellant herein was a partnership firm and the said firm was a tenant in respect of the suit premises under the respondent. Sometimes in 1975 the partners of the appellant firm transferred their business with all profits and liabilities in favour of one Pankaj Sur. The said Pankaj Sur carried on business under the name and goodwill of the appellant firm as a proprietorship concern. Sometimes in 1979 the respondent instituted a suit for eviction against the appellant. The said suit was decree ex-parte. The respondent put the decree in execution vide Title Execution Case No.2 of 1981. During the pendency of the execution proceeding the suit property was acquired by the government. Against such order of acquisition the tenant filed a writ petition before this Court. The writ petition was finally disposed of and the suit property was derequisitioned. During pendency of the execution proceeding, it is alleged by the appellant that an agreement was executed between Mr. Pankaj Sur, the proprietor of the appellant concern and the respondent and pursuant to the said agreement, a sum of Rs.2,00,000/- was paid to the respondent by the said Mr. Sur. It was stipulated in the agreement that within a specific period of time Mr. Sur would purchase the suit premises and if he fail to purchase the same the said amount of Rs.2,00,000/- would be adjusted towards arrear rent. The petitioner also instituted Title Suit No.369 of 2002 contending, inter alia, that it has become a direct tenant under the opposite party and the execution case is not maintainable. Finally the appellant filed Misc Case No.4 of 2003 under Section 97, 98, 99, 101 of the Code of Civil Procedure. The learned judge in executing court dismissed the said misc case on contest.

(3.) The petitioner of the said misc case filed an appeal before the learned Additional District Judge, Fast Track, 1st Court at Alipore which was registered as Misc Appeal No.284 of 2004. Learned Judge in First Appellate Court also dismissed the misc appeal on contest. Affirming the order dated 17th July, 2004 passed by the learned executing court in Misc Case No.4 of 2004.