HIRALAL SHA Vs. DEBPROSAD DEY & ORS.

JUDGEMENT

(1.) The First Miscellaneous Appeal has been preferred by a third party/resister against the order passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta thereby allowing application of the respondent No. 1 under Order 21 Rule 97 of the Code of Civil Procedure and granting police help for, execution of the decree for recovery of possession passed in favour of the respondent No. 1. The undisputed position is that the respondent No. 1 filed a suit for eviction against the respondent Nos. 2 to 8 and obtained a decree which was affirmed up to this Court. Subsequently, the respondent No. 1 decree-holder put the said decree into execution and obtained recovery of possession in execution of the same. But on the same day the judgment-debtors again trespassed into the suit property which prompted the respondent No. 1 to file an application for restoration of the said execution case and the learned Judge was pleased to allow the same. Against the order, respondent Nos. 2 to 8 filed a revisional application before this Court but this Court did not interfere with the order of the learned executing Court restoring the execution case.

(2.) Thereafter in execution of the decree respondent No. 1 got delivery of possession of part of the suit property except the present subject matter of the execution case which was in occupation of the appellant and the said execution case was dismissed on part satisfaction.

(3.) Subsequently the instant execution case being Ejectment Execution Case No. 471 of 1979 was filed by the respondent No. 1 for recovery of the remaining part of the property which could not be executed by the earlier execution case. The present appellant and the respondent No. 9 having resisted the Bailiff, the present respondent No. 1 filed an application under Order 21 Rule 97 of the Code of Civil Procedure thereby giving rise to the Miscellaneous Case No. 1321 of 1981.