GOPAL CHANDRA SADHUKHAN Vs. SHEIKH JAMSED

JUDGEMENT

(1.) This Rule was obtained at the instance of the decree-holder and is directed against the Minsiff's order passed on an application filed by Opposite Party No. 1 under the provisions of Order 21 Rule 99 of the Code of Civil Procedure.

(2.) The petitioner obtaining a decree for possession against Md. Omar (Opp. Party No. 2) In a suit for eviction in respect of a room which was the subject-matter of the tenancy started 1he execution on September 18, 1959. The petitioner was resisted by Opposite Party No. 1 and the Writ of possession was returned unserved. On November 9, 1959 the decree-holder petitioner filed two applications--one, praying for police help; and another, for possession, after breaking the padlocks of the door, if necessary on which inter alia the following order No. 2 was passed on November" 9, 1959 by the learned Munsiff: "The petition praying for Police help will be allowed on Rs. 37/6/- being deposited by 19-11-59. The petition praying for breaking open the padlock be put up on 19-11-59." After the amount of cost was deposited, the learned Munsiff passed an order (No. 3) on 12th November, 1959 directing Police help without waiting upto the 19th and directing the breaking of the padlock, if necessary. The writ of delivery of possession was directed to be issued, fixing November 28, 1959 for return. These two orders dated 9th and 12th November were passed admittedly without notice to the Opposite Party No. 1, who filed the application as stated, under the provisions of Order 21 Rule 99 of the Code of Civil Procedure, alleging that he was a monthly tenant under the judgment debtor, Md. Omar, (the Opposite Party No. 2 herein) 'in his own right' and that he was holding the suit premises 'on his own account', 'in good faith' and independently of the judgment-debtor. On evidence, the learned Munsiff by his order dated June 28, 196.3 (order No. 56) not only allow ed the said application under Order 21 Rule 99 of the Code but refused the1 decree-holder's prayer for possession through the Police help. The decree-holder petitioner through his learned Advocate Mr. Amal Kumar Ghoshal, is now challenging only the said order of June 28, 1963 in the instant Rule, principally on the 'ground that the Opposite Party No. 1, even assuming (though not admitting) that he is a third party or a bona fide claimant, has no locus standi to maintain the application under Order 21 Rule 99 of the Code. Mr. Ghandra Nath Mukherjee, the learned Advocate for Opposite Party No. 1, is equally emphatic in his submissions for acceptance of the view opposite.

(3.) There being, as stated, no direct authority on the point and for appreciating the few decisions cited at the Bar it would be appropriate to notice the development of the law beginning from the Code of Civil Procedure, 1859 Sections 229 and 269 of which, run as follows :-