DILIP NAG Vs. LILABATI GARAI

JUDGEMENT

(1.) This is a revisional application under section, 115 of the Code of Civil Procedure against order dated 4th July, 1989 passed by the Second Bench, City Civil Court, Calcutta in Misc. Case No. 912 of 1988 arising out of Execution Case No. 24 of 1987 from Ejectment Suit No. 426 of 1980. The,petitioner's case is that the Opposite Party/Decree Holder has obtained a decree for eviction against one Kishore Das, a fictitious person, in the said ejectment suit in respect of the first floor of premises No. 1, Pratap Chatterjee Lane, Calcutta. The petitioner with other members of the family is residing in the said premises since 1947 and when the process server came for the execution of the decree passed in the ejectment suit, the petitioner's father resisted the execution of the decree. The Decree Holder/Opposite Party immediately filed an application under Order 21 Rule 97 of the Code of Civil Procedure, the petitioner duly appeared in the Misc. Case and filed objection to the Decree Holder's application. The petitioner filed an application under section 151 of C.P.C. contending that in view of the 1976 Amendment of the C.P.C. while hearing an application under Order 21 Rule 97 the Court is under an obligation to determine the right, title and interest of the resistor which in this case is the petitioner. It was further contended in the application that the order which would be passed in the disposal of that application would be a decree and appealable, and the enquiry under this Rule will be treated as it was a trial in the suit and the procedure for trial of suit under the C.P.C. would be the procedure. The petitioner prayed for fixing up a date of discovery of documents and framing of issues prior to taking evidence for final disposal of the Misc. Case. The learned, Judge dismissed the petitioner's application by order dated 4th July, 1989 holding that there is 'hardly any scope for discovery and inspection of documents in a proceeding under Order 21 Rule 97 read with Order 21 Rule 101 of C.P.C. Against the aforesaid order the petitioner has come to the High Court.

(2.) Mr. Goswami, the learned Advocate appearing for the petitioner, submitted that under Order 21 Rule 97 a regular procedure of suit must be adopted and the matter cannot be decided by summary procedure. In this connection he referred to (1978)2 Andhra Pradesh Law Journal 294 (335) and AIR 1978 Mad. 270 (M/s. Southern Steelmade and Alloys Ltd. v. B. M Steel; Madras). He could not produce the A.P.L.J. The learned Advocate also referred to the notes of Mulla's and Sarkars' Code of Civil Procedure and submitted that as a decree is not against the father of the petitioner but the Judgment Debtor's personality is in dispute as such regular procedure of suit is required to be followed. He submitted that the matter may be referred to the larger Bench for settling the point.

(3.) Mr. Roy Chowdhury, the learned Advocate appearing for the Decree Holder, submitted that the only procedure which is to be followed is as in Order 21 Rule 58 of the Code of Civil Procedure. He emphatically submitted that the proceedings applicable in Order 21 Rule 97 is not a proceeding as applicable in a suit and it need not be taken recourse of. In his contention the C.P.C. nowhere says that a procedure of suit as laid down in section 26 of C.P.C. onwards is to be followed, and must not be followed. He emphasised that pre-decree position cannot be invoked in this application at all but, other opportunities can be given to the petitioner.