SHANTI DEBI NAI Vs. HARIKRISHNA NATHANI

JUDGEMENT

(1.) - The instant revisional application is directed against the Order No. 79 dated 24th August, 1994 in Misc. Case No. 503/89 by the 5th Bench, City Civil Court at Calcutta rejecting the petition under section 47 C.P.C. The facts leading to this revisional application are as follows :-

(2.) That one Jethmull Nai was originally a monthly tenant under the opposite parties in respect of one room on the top floor at premises No., 10, Rajendra Mullick Street, Calcutta-7 on monthly rental of Rs. 20/payable according to English Calcutta. The aforementioned tenancy continued in the name of Jethmull Nai, the Petitioner's husband up to the month of August. 1960. In the month of September, 1960 it was transferred in the name of the petitioner and therefore, she continued as a tenant of the suit premises under the opposite parties and used to pay rent to them till 1979 against proper rent receipts. The opposite parties had, however, granted two receipts in the name of the petitioner's mother Chotta Bai Nayan allas Chotta Bai Naian who at that point of time was residing with the petitioner in the said premises. The petitioner was under the bonafinde belief that the opposite parties must be granting receipts in respect of the premises. But, when, the petitioner subsequently verified that they had not granted receipts for the entire period, she approached them demanding to pass proper receipts which they assured to do in-course of time. But, all such attempts proved futile. Suddenly, the petitioner came to know from an application dated 16th July, 1988 which was registered as Misc. Case No. 579/88 sent under Registered-Post to Gopi Krishna Kachar that the opposite parties had obtained an exparte decree in Ejectment Suit No. 616/85 against the said Chotta Bai Nayan for eviction from the premises and the Misc. Case was filed for possession of the said premises with the help of police aid. Therefore, the petitioner filed an application under section 47 C.P.C. claiming that the decree said to have been obtained is a nullity to as much as by the time of passing of the decree the petitioner's mother Chotta Bai Nayan was already dead. Therefore, the decree was void and unenforceable in law. It is further claimed by the petitioner that the opposite parties decree-holder having full knowledge about the possession of the petitioner in respect of the suit house had purposefully omitted to implead her in the eviction suit. The learned executing court has however. rejected her application.

(3.) Mr. Tandon, the learned advocate appearing for the petitioner, has highlighted that in this case the learned executing court has shirked from the responsibility in deciding the rights of the petitioner vis-a-vis opposite parties. It has mechanically rejected the prayer of the petitioner without discussing the merits of the case. During the course of hearing, it came to light that the petitioner had already filed and independent suit in T.S. No. 1646/88 which was pending in the court of the learned 11th Judge, City Civil Court. Since no application could be maintainable in face of pendency of a suit, the petitioner chose to withdraw the suit. Mr. Tandem. the learned counsel appearing for the petitioner, has strongly urged that after the amendment of the C.P.C. a separate suit either under section 47 or under Order 21 Rule 97 or Rule 99 having been barred, the determination of right, title and interest of a third party over the suit property has to be decided in the manner provided under Rule 104 and the decision thereunder could only be challenged in appeal. Therefore, the learned executing court in a slip-shod manner should not have disposed of the petition filed by the petitioner under section 47 by rejecting it.