PURBAN PVT LTD Vs. DEB KUMAR SHAW

JUDGEMENT

(1.) THESE three appeals arise out of three orders being Order No. 50 passed in Misc. Case No. 21 of 1976, Order No. 51 passed in Misc. Case No. 19 of 1976 and Order No. 49 passed in Misc. Case No. 20 of 1976 respectively on 19. 5. 76, dismissing the said Miscellaneous cases filed under Section 47 of the Code of Civil Procedure in Title Execution Case No. 16 of 1975.

(2.) THE petitioner, M/s. Purban Pvt. Ltd. , a company incorporated under the Companies Act, has been in occupation of the basement, first floor and fourth floor of premises no. P-5, C. I. T. Scheme - IV, Calcutta as a tenant under the respondent Deb Kumar Shaw. The petitioner Company defaulted in payment of rents. The respondent filed three ejectment suits being Title Suit No. 67 of 73, 68 of 73 and 69 of 73 in the 9th Court of Subordinate Judge at Alipore in respect of the said three flats. The said suits were decreed on compromise on December 5, 1974. The compromise decree provided that the total sum of Rs. 1,17,000/- on account of arrears of rent and mesne profits would be paid by the defendant in the following manner:-a sum of Rs. 30,000/- to be paid by 31st December, 1974 and the balance amount of Rs. 87,000/- to be paid in 17 quarterly installments of Rs. 5,000/-each except the last installment which should consist of Rs. 2,000/ -. It was further provided in the said decree that the company, that is, the petitioner, would also go on paying a total sum of Rs. 2,250/- per month within 15th of the month succeeding as current mesne profits in respect of the said three tenancies. There is also a default clause which provides that in case of default the decree holder will be entitled to execute the decree and take possession of the suit premises. It has also been provided in the compromise decree that if all the arrears and the current mesne profits are made in the manner provided in the compromise decree the old tenancy will continue. The defendant petitioner defaulted in making payment in terms of the said decree. The plaintiff put the said decrees into execution in Title Execution Case No. 16 of 1975. In the said execution case an objection was filed on behalf of the judgment-debtor petitioners that the decree has become in executable as the State of West Bengal has declared the petitioner Company as a State Undertaking. Unless the State of West Bengal is made a party in the execution proceedings the writ of possession cannot be executed. It has also been stated that the I. R. C. I. is also a necessary party as they advanced a huge sum of money for running the business in the suit premises. Similar objections were filed in the other Title Execution cases and these objections were registered as Misc. Case Nos. 19,20 and 21. On May,19,1976, all these misc. cases were dismissed by the Subordinate Judge, 9th Court, Alipore holding that the State of West Bengal was not a necessary party and this had been held by an earlier order dated February 20, 1976 as the notification-in-question had no application to the instant decree. It was also held that the I. R. C. I. in spite of given time to file application under order 1, Rule 10 of the Code of Civil Procedure did not appear in the misc. case and as such it was not a party interested and a necessary party. It was further held that Section 148 C. P. Code did not apply inasmuch as the executing court cannot go behind the decree except for the purpose of dissolving any ambiguity. The compromise decree is unambiguous and as such the executing court cannot extend time for making the deposits as provided in the compromise decree.

(3.) AGAINST these orders three appeals being F. M. A. Nos. 780 of 1976, 806 of 1976 and 827 of 1976 have been filed and in connection with the said appeals three Rules were issued being Civil Rule No. 2224 (M) of 11976, 2223 (M) of 1976 and 2222 (M) of 1976 were issued staying the Title Execution case Nos. 16 of 1975 and 17 of 1985 pending the hearing of the Rule.