BIBHUTI BHUSAN DUTTA Vs. SAMARENDRA NATH MISRA

JUDGEMENT

(1.) - This appeal is directed against Order No. 31 dated 12th December, 1997 passed in Misc. Case No. 1610 of 1995 by the learned Judge. City Civil Court Calcutta, Twelfth Bench. The said Misc. Case arose out of a proceeding under Order XXI Rule 99 of the Code of Civil Procedure (CPC). Briefly stated, the facts are as follows :-

(2.) Pursuant to an ex parte decree against one Archana Misra, the petitioner Bibhuti Bhusan Dutta was dispossessed in course of execution. According to the applicant, the ex parte decree against Smt. Archana Misra was obtained by the plaintiff Samarendra Nath Misra by practicing fraud and collusion upon the Court. Inasmuch as the applicant was the tenant in respect of the suit premises after having the talk of tenancy with Dr. Misra, who had pointed out that the receipts would be granted by his wife and accordingly, the receipts used to be granted by the wife of Dr. Misra being Smt. Archana Misra. The said Smt. Archana Misra had instituted a suit for eviction against the applicant being suit No. 487 of 1990 in the City Civil Court at Calcutta, which was being contested, by the applicant. During the pendency of the said suit, Dr. misra, plaintiff-decree-holder instituted a suit for eviction against his wife Smt. Archana Misra in the City Civil Court at Calcutta being Ejectment Suit No. 113 of 1993. The applicant/appellant was inducted as tenant on June 15, 1983. The suit file by the plaintiff/respondent herein was decreed ex parte against Smt. Archana Misra on 2nd of August 1994. The bailiff submitted a report on 24th November 1984 that the execution was resisted by the wife Smt. Archana Misra. He apprehended breach of peace. Therefore, returned the writ unexecuted. On 25th November, 1994, on an application under Order XXI Rule 97 CPC, police help was granted by the Court. In execution, the appellant/applicant was dispossessed. Thereafter, the Ejectment Suit No. 487 of 1990 filed by Smt. Archana Misra was dismissed for non-prosecution, on the prayer of Smt. Archana Misra, on 31st of June, 1995. The appellant/applicant filed an application under Order XXI Rule 99 read with section 151 CPC being the present Misc. Case No. 1610 of 1995 on 19th July, 1995. The Misc. case was dismissed on 30th March, 1996. F.M.A. 1256 of 1997 was filed before this Court on 25th November, 1995. The said appeal was allowed on 19th of September, 1997, remanding the case to Court below. On remand, the order appealed against was passed on 12th of December, 1997 rejecting the said application under Order XXI Rule 99 CPC. Submission of the Appellant :

(3.) The learned counsel for the appellant points out that under Order XXI Rule 99 of the Code of Civil Procedure, the relief can be had by a person who is not a judgment-debtor. The appellant has sought to point out that he was not the judgment-debtor. In other words, according to him, the appellant is not bound by the judgment. In order to bring his contention home, the appellant had attempted to make out a case that he was a tenant under the plaintiff Dr. Samarendra Nath misra on whose behalf the receipts were granted by his wife Smt. Archana Misra. He was not a tenant under Smt. Archana Misra and thereby a sub-tenant in the premises and as such, the decree could not be binding upon him.