BIJOY KANUNGO Vs. STATE

JUDGEMENT

(1.) -The disputed property is the 1st. Floor of Premises No. 14, Alipore Park Road, Calcutta.

(2.) The said property was owned by the Mullicks, who ultimately transferred their right title and interest to the present opposite party No. 1.- With regard to the 1st. Floor of the said Premises, the Mullicks created a lease for 21 years in favour of Turner Morrisson & Co. Ltd. (hereinafter referred to as opposite party No. 2). The Revisionist petitioner claims to be a recognized sub-lessee under opposite party No. 2. On the ground of expiry of lease, with effect from 2nd April 1981, the Mullicks instituted an eviction suit against opposite party No. 2 being title suit No. 115 of 1983 of the first Court of the learned Subordinate Judge, Alipore and during the pendency of the said suit, the sale by owners in favour of opposite party No. 1 had taken place. The said opposite party No. 1 got itself added as plaintiff in the said suit. In the said suit the prayer made on behalf of opposite party No. 2 for addition of the present revisional petitioner as a party stood rejected and on or about 28th January, 1992, the said eviction suit was decreed ex parte. The opposite party No. 1 put the said decree into execution in title execution case No. 8 of 1992. The revisional petitioner, on the other hand, filed a suit for declaration to the effect that his possession as a subtenant of opposite party No. 2 was legal, valid and protected by law and could not be interferred with even by enforcement of the ex parte eviction decree. Such suit was numbered as Title suit No. 28 of 1992. A prayer for ad interim injunction, made in the said suit, stood rejected by order No. 9 dated 24th July, 1992 of the learned Assistant District Judge, first Court, Alipore inter atria, with a finding that the defence set up by the revisional petitioner, as plaintiff, as not being bound by the ex parte eviction decree against the opposite party No. 2, was not tenable. The said order remained unchallenged. The revisional petitioner, however, filed an application purporting to be one under Order 21 Rule 97/100/101/151 of the Code of Civil Procedure in the Title execution case No. 8 of 1992 and such application of the revisional petitioner was registered and numbered as Misc. case No. 32 of 1992. In connection with the said application, the petitioner made an application for stay of all further proceedings in the execution case and for re-calling the writ of possession already issued till the disposal of the said Misc. case, filed by the petitioner. By the impugned order the said interlocutory application of the petitioner having been rejected, the present revisional application has been preferred. Since the contesting opposite party No. 1 has entered appearance, we heard out the application as a contested application.

(3.) Appearing in support of the revisional application, Mr. Bhattacharjee strenuously endeavoured to impress upon this Court, on reference to various judicial authorities, that till his client's entitlement to resist the decree was finally adjudicated, the executing Court had no right to proceed with the execution case initiated by the opposite party No. 1 and the reliance by the learned trial Judge, while rejecting the petitioner's prayer for stay, on the fact of refusal of the injunction by him in the petitioner's title suit, amounted to irregular and illegal exercise of jurisdiction by him and as such the impugned order deserves interference in revision. On behalf of the opposite party No. 1 however, Mr. Dasgupta contended that in view of the nature of the right claimed by the petitioner, the pendency of the Misc. case could not pave the ground for an automatic interim stay.