GAUTAM PAUL Vs. RADHA RANI RAY

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against the order dated 29. 3. 2007 passed by the learned civil Judge (Senior Division), Sealdah in Miscellaneous Case No. 25 of 2006 arising out of Title Execution Case No. 3 of 2004 wherein the learned Civil judge has rejected the petition dated 20. 9. 2006 under section 151 of the Code of Civil Procedure filed by the petitioner/judgment-debtor. Being aggrieved by the said order, the petitioner/judgment-debtor has preferred the present application.

(2.) THE fact of the case in short is that the petitioner/judgment-debtor has been residing in the suit premises being No. 14/c, Sambhu Babu Lane since his birth and on 03. 12. 1988 he purchased 1/9th share of Bivabati Paul by a registered deed of sale and thus he became owner of the suit premises to the extent of 1/9th share. Thereafter one partition suit was filed in the year 1989 before the learned Assistant District Judge, Alipore for partition of the suit premises by metes and bounds and that suit being No. 4 of 1989 was decreed in the preliminary form. The plaintiffs of that suit prayed for a decree of declaration that they are entitled to purchase the 1/9th share of Bivabati Paul sold to the petitioner by way of pre-emption under section 4 of the Partition Act and the learned Assistant District Judge kept the pre-emption proceedings pending to be decided upon recording of evidence of the parties at a later stage. The plaintiffs preferred an appeal being F. A. No. 152 of 1993 before the Hon'ble High Court at Calcutta against the said judgment and decree and the Hon'ble High Court at Calcutta allowed the appeal holding, inter alia, that the petitioner herein is a stranger and the plaintiffs are entitled to pre-empt the property of the petitioner. Thereafter, the petitioner preferred an appeal being S. L. P. (C) No. 2148 of 1989 subsequently re-numbered as Civil Appeal No. 5942 of 2002 before the Hon'ble Supreme Court against the judgment and decree of the Hon'ble high Court at Calcutta and the said appeal was disposed of finally restoring the judgment of the Trial Court except that the application under section 4 of the Partition Act shall now stand dismissed as being pre-mature. The respondent nos. 1 and 2 are at liberty to apply to the Trial Court if they so desire for a final decree of partition. Then, instead of applying for a final decree for partition, the plaintiff filed the fresh suit for declaration and injunction against the petitioner and that suit was registered as Title Suit No. 63 of 2001. That suit was decreed on 28. 11. 2003 from which the Title Execution Case No. 3 of 2004 arose. Thereafter the petitioner herein preferred an appeal being Title Appeal no. 31 of 2004. In the meantime, plaintiff/opposite party filed the Title Execution case No. 3 of 2004 arising out of Title Suit No. 63 of 2001. The Appellate Court affirmed the judgment and decree dated 28. 11. 2003 with the following modification:

(3.) THEREAFTER, the petitioner herein filed an appeal before the Hon'ble High court at Calcutta being S. A. T. No. 3230 of 2006 and the Hon'ble High Court refused to interfere with the said order. Then the petitioner herein filed the special leave petition before the Hon'ble Supreme Court against the order of the Hon'ble High Court which was registered as Special Leave to Appeal (C)No. 16142 of 2006. Then the petitioner filed an application in the Executing court for rejection of the execution petition under Order 21 Rule 11 of the Code of Civil Procedure which was registered as Miscellaneous Case No. 25 of 2006. The contention of the petitioner is that after modification of the judgment and decree the earlier Title Execution Case No. 3 of 2004 has become infructuous.