SHREE GOPAL JEW Vs. JUMBO TRADERS PRIVET LTD

JUDGEMENT

(1.) This appeal is directed against an order passed by His Lordship Sujit Kumar Sinha, J on 25th February, 1997 whereby His Lordship held that the decree passed by the Hon'ble Court on 5th September, 1985 is a nullity.

(2.) Facts of the case briefly are as follows: Appellants instituted a suit against the respondent No.l in the Alipore Court in or about July, 1985 inter alia praying for recovery of has possession of the suit premises and for mesne profit from 1st July, 1985 till delivery of possession of the suit premises. The said suit was transferred to this Hon'ble Court and was renumbered as Extra ordinary Suit No.8 of 1985. In the said suit on 26th August, 1985 on an application of the appellants herein the Hon'ble Court appointed a Receiver in respect of the suit premises. On 5th September, 1985 an application under Chapter XIIIA of the Original Side Rules of this Court was filed by the appellants and a final judgement and decree was passed. The operative portions of the said decree are as follows: "It is ordered and decreed that the respondent do deliver up to the plaintiffs khas and/or vacant, quiet and peaceful possession of the demised premises (particulars whereof are set out in the schedule hereunder written and hereinafter collectively referred to as 'the demised premises'). And it is further ordered and decreed that there shall be a decree for eviction and/or ejectment in favour of the plaintiffs in respect of the said demised premises. And it is further ordered and decreed that the Receiver appointed herein in pursuance to the order dated the twenty-sixth day of August, one thousand nine hundred and eighty-five shall continue to act as such Receiver of the said demised premises with all the powers as provided under the said order dated the twenty-sixth day of August, one thousand nine hundred eighty-five. And it is further ordered and decreed that the said Receiver shall and do obtain the vacant possession of the said demised premises and shall and do make over the same to the plaintiffs. And it is further ordered and decreed that after making over such vacant possession to the plaintiffs as aforesaid the said Receiver shall stand discharged from further acting as such Receiver."

(3.) Thereafter, learned Receiver went to the suit premises to execute the decree, but he was resisted by the Refugee Handicrafts which claimed to be a sub-tenant in respect of the suit premises. It also appears from the records that the said Refugee Handicrafts was a sub-lessee in respect of the said premises, but on 30th June, 1985 the said sub-lease had expired and thereafter the appellants filed an application under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as the CPC) inter alia for removal of obstruction to the execution of the said decree and for an order directing the Refugee Handicrafts to put the Receiver in vacant possession of the suit premises. The said Refugee Handicrafts filed an application inter alia for setting aside of the said decree. Both the applications were disposed of on 11th September, 1986 by a common judgement, but two separate orders were passed. By an order, the appellants' application was allowed and the Refugee Handicrafts were allowed to take the vacant possession of the said premises (appearing at page 43, being Annexure "D" of the Paper Book) and by the order, the application of Refugee Handicrafts was dismissed (Annexure "E" at page 49 of the Paper Book). Thereafter, Refugee Handicrafts preferred an appeal and the appeal being No. 911 of 1987 against the said judgement and order dated 11th September, 1986.