DEBA PROSAD MAZUMDAR Vs. MAN MOHAN MAZUMDAR

JUDGEMENT

(1.) The respondent No.1 as plaintiff filed a Title Suit in the City Civil Court, Calcutta against the appellant and the respondent No.2 making the respondent No.3 as a pro-forma defendant inter alia, for a declaration that the decree passed in the ejectment Suit No.514 of 1987 by the learned judge, XIth Bench, City Civil Court, Calcutta was void, inoperative and not binding upon the respondent No.l as also upon the respondent Nos.2 and 3, for further declaration that the respondent No.l and the other respondents were joint tenants in respect of the suit premises, and for permanent injunction. The said suit was numbered as Title Suit No.700 of 1988 of the court of the learned judge, III Bench, City Civil Court, Calcutta. It was alleged inter alia, in the plaint that one Shyama Das Chatterjee, since deceased, was the owner of premises No. 125, Keshab Chandra Sen Street, Calcutta and a tenancy was held in respect of the same premises in the name of the plaintiff's elder brother Nalini Kanta Majumdar jointly with his friend Purunjit Biswas. The plaintiff with his family came to Calcutta in or about the year 1946 and started living with his elder brother in the suit premises and though the rent was being paid by the plaintiff's mother, who lived in the suit premises along with her three sons namely, the plaintiff, the defendant No.l and also the proforma defendant but the rent receipts were continued to be issued in the name of Nalini Kanta Majumdar as he was the eldest brother. After the death of the plaintiff's mother in the year 1962, all the brothers used to contribute towards the rent, though the rent receipts were being issued by the landlord in the name of Nalini Kanta Mazumdar alone. In or about the year 1986, the defendant No.2 who is the appellant before this court, purchased the suit premises by a registered deed of conveyance in a clandestine manner and behind the back of the plaintiff and the proforma defendant and in collusion with his father the defendant No.1, filed Ejectment Suit No.514 of 1987 before the learned judge, XIth Bench, City Civil Court, Calcutta and obtained an ex-parte decree on 9th February, 1986 by practising fraud upon the court. The said decree was put into execution and a false report was submitted by manipulation and/or collusion with the court bailiff that Nalini Kanta Majumdar appeared to have given a mock resistance just to facilitate the prayer for police help. Though the plaintiff was a joint tenant of the suit premises, no notice of the suit was served upon the plaintiff. In the said Title Suit No.700 of 1988, the plaintiff-respondent No.l also filed an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil procedure inter alia, praying for temporary injunction against the defendant No.2 appellant restraining him from proceeding further with the Ejectment Execution Case No.9 of 1989 pending in the court of the learned judge, XI Bench, City Civil Court, Calcutta till the disposal of the suit. The said application was objected to by the defendant No.2-appellant as well as by the respondent No.2, inter alia, denying the plaintiff's allegations regarding the joint tenancy. The learned judge, IIIrd Bench, City Civil Court, Calcutta, however, by his Order No.27 dated 28th February, 1989 allowed the plaintiff respondent No.1's said application for temporary injunction holding inter alia, that the plaintiff had got a prima facie case to go to trial. The said order is the subject matter of challenge in the present appeal by the defendant No.l appellant.

(2.) Mr. Bidyut Banerjee, learned counsel appearing on behalf of the defendant No.l-appellant challenges the impugned order infer alia, on the ground the respondent No.l instead of filing a suit, should have filed an application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure in the execution proceeding pending at the time of institution of his suit, as it is well settled that even a third party who is not a party to the suit or to the decree passed in the suit, can file an application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure as the provisions of Order XXI Rule 101 of the Code of Civil procedure states inter alia, that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and as per the provisions of Order XXI Rule 103 of the Code, where any application has been adjudicated upon under Rule 98 or Rule 100 of the said Order XXI, the Order made thereon shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree. In support of his contentions Mr. Banerjee refers to two Supreme Court decisions one in the case of Bhanwar Lal v. Satyanarain and Anr. (1995) 1 Supreme Court cases 6 and the other in the case of Babu Lal v. Raj Kumar & Ors., (1996) 3 Supreme Court cases 154. (Emphasis added)

(3.) Mr. Kasinath De, learned advocate appearing on behalf of the respondent No.3, however, contends inter alia, that neither in the case of Bhanwar Lal v. Satyanarain & Anr. (supra) nor in the case of Babu Lal v. Raj Kumar & Ors. (supra), Supreme Court has observed that a third party to a suit in which a decree has been passed, cannot be filed a suit for a declaration that the decree is not binding upon him and he is bound to file application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure wherein only, he can challenge such decree. Mr. De further contends that if it is held as per the judgments of the Supreme Court as referred to above, that an independant suit filed by a third party challenging the decree claiming an independing right of possession in the disputed property is barred, then the provisions of Order XXI Rule 104 of the Code would become nugatory and in support of his contention, he refers to the decision of the Supreme Court in the case of Krishena Kumar v. Union of India & Ors. (1990) 4 Supreme Court cases 207.