BHANU BAHADUR Vs. MIHIR KUMAR SEN

JUDGEMENT

(1.) THE petitioner before us claims to be a tenant under Opposite Parties 1 and 2. The said Opposite Parties instituted an eviction suit against Opposite Party No. 3, which culminated with a decree for eviction. There were various proceedings at the instance of Opposite Party No. 3, going up to the Hon'ble Supreme Court, which ultimately rejected a Special leave Application at the instance of Opposite Party no. 3, inter-alia, giving it time till 30th November, I991, to vacate the premises in question, if an undertaking was filed within four weeks from the date of the. order, namely, 20th August, 1991. That decree had been put into execution giving rise to Title execution case no. 16 of 1990of the 2nd Court of the Learned Assistant District judge, Alipore. In the said Execution case, an application was preferred on behalf of Opposite Parties 1 and 2 under Rule 208 of Civil Rules and Orders, volume-I, inter-alia, attributing vehement and strong resistance from the agents and men of the judgment debtors as the cause for non-execution of the decree and paying for police help, as above, for delivery of possession of the suit property to the decree-holder. At that stage, the present petitioner, inter-alia, claiming to be a tenant under Opposite Parties 1 and 2 in the premises, possession of which had been allegedly recovered by that time by the said opposite parties 1 and 2 from Opposite Party No. 3 in execution of the decree against it filed an application for being added as a party to the execution proceeding and a further application for stay of further proceeding in the said execution case till the disposal of the aforesaid application of the petitioner. Both of such applications having, effect been adjourned, the present revisional application has been preferred. On behalf of the Opposite parties no. 1 and 2; who have appeared before us, it has been contended that the petitioner had been set up by the judgment debtor for thwarting the execution of the decree and as such, the petitioner is either a name lender or servant or agent of the opposite Party No. 3. and is proceeding in conspiracy and collusion with the said Opposite Party On the aforesaid factual basis, it has been argued on behalf of the contesting opposite parties that the petitioner has no right to be added as a party to the execution proceeding

(2.) WE have heard Mr. Bhaskar Bhaltacharyya, in support of the revisional application, and Mr. Mani Bhusan Sarkar on behalf of the contesting opposite parties 1 and 2. A copy of the application made on behalf of the petitioner for addition has been produced along with a copy of the application for police help preferred on behalf of the contesting opposite parties under Rule 208 of the civil Rules and Orders, Volume-I. It appears from the respective cases that the question as to whether the revisional petitioner is an independent claimant or one, who can be said to be representative of the judgment debtor, has to be decided by the executing court in terms of Sub-section 3 of Section 47 of the code of Civil Procedure. Order 21 Rule 35 entitles a decree-holder to get delivery of possession through execution by removing 'any person bound by the decree and who refuses to vacate the property'. Order 21 Rule 36 of the said code, however, provides for symbolic possession through execution when the property is in occupation of a tenant or other person not bound by the decree and entitled to occupy the same. A glance at the language of the aforesaid provisions makes it clear that prior to passing any order for execution, the executing court has to come to a conclusion as to the status of the person, who is in occupation of the property in dispute and who is sought to be thrown out of it. In view of the nature of the allegations and counter allegations in the present case, such a conclusion cannot be reached by the Court without affording any opportunity of hearing to the revisional petitioner.

(3.) THE impugned order, therefore, fixing the hearing of the execution case prior to the hearing of the petitioner's applicat ion for addition is an instance of exercise of jurisdiction by the Court with ma terial irregularity and illegality calling for an interference under Section 115 of the Code of Civil Procedure. To do otherwise would be to would not only the petitioner's application infructuous but also the proceeding in execution case impractical and unjust. We direct the Executing Court to take up the hearing of the application of the revisional Petitioner for addition of party preceding the hearing of the execution case and hearing of both the cases be completed within 4 weeks from the date of communication of the order to the Court concerned. We keep it on record that we have not expressed any view on the points that may fall for consideration of the Court below in course of such hearing and the Court will be at liberty to mould the relief consistent with the requirement of justice.