BANASRI @ BANASRI GHOSH Vs. BALAILAL ADAK & ORS.

JUDGEMENT

(1.) The instant revisional application under section 115 of the Code of Civil Procedure has been preferred by the plaintiffs/petitioners against Order No. 4 dated 22.6.93 passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Suit No. 1200 of 1993 thereby rejecting the petitioners application under section 151 of the Code of Civil Procedure for an interim order of temporary injunction against the defendants present opposite party Nos. 1 to 5 who got a decree for declaration of title and recovery of possession in respect of the disputed premises against the present petitioners and the opposite party Nos. 6 and 7 in Title Suit No. 127 of 1975 from the Court of the 6th Judge, City Civil Court, Calcutta affirmed in first appeal by this High Court.

(2.) It has been contended by Mr. Roy Chowdhury, the learned Advocate appearing for the petitioners that the Trial Court has most illegally and with material irregularity rejected the petitioners' or a year for interim injunction made in their application under section 151 of the Code of Civil Procedure by the impugned order and, as such, it should beset aside.

(3.) In order to appreciate the contention of Mr. Roy Chowdhury reference may be made to the following admitted and undisputed facts on record. Decree for declaration of title and recovery of possession in respect of the disputed premises was obtained by the present opposite party Nos. 1 to 5 in Title Suit No. 127 of 1975 on 23.8.79 against the present petitioners and the opposite party Nos. 6 and 7. Against the said decree the present opposite party Nos. 6 and 7 preferred F.A. No. 296 of 1984 on 24.10.79 making the present petitioners proforma respondents. On 21.6.88 an application was filed on behalf of the present opposite parties No. 1-5 for dispensing with the service of notice of the aforesaid appeal upon above proforma respondents which was allowed on 20.2.90. The above First Appeal was dismissed by this High Court in June 1991. Thereafter Title Execution Case No. 56 of 1991 was filed by the opposite party No. 1 and opposite party Nos. 2 to 5 being the heirs of Balai Lal Adak in the 12th Bench City Civil Court, Calcutta. The present petitioners filed a Misc. Case, being No. 1484 of 1992 under Order 21 Rule 58 of the Code of Civil Procedure in the aforesaid execution proceeding sometime in Nov. 1992 which was dismissed by the Executing Court on 29.5.93. In the execution proceeding, police help was sought for and was allowed. But the present petitioners resisted delivery of possession through police help on 16.6.93 and on the same date they filed Title Suit No. 1200 of 1993 against the present opposite party Nos. 1 to 5 for a declaration that the judgment and decree obtained by the opposite parties on 20.2.92 in F.A. No. 296 of 1984 from this High Court affirming the Trial Court's judgment and decree is fraudulent collusive and not binding upon them along with a prayer for permanent injunction restraining the opposite parties from disturbing their possession in respect of the disputed premises. In the aforesaid Title Suit, being Title Suit No. 1200 of 1993 an application for temporary injunction with the prayer for an interim order of injunction was filed, but the Trial Court refused to grant any interim order and directed issue of show cause notice upon the defendants/opposite parties. On 22.6.93 an application under section 151 of the Code of Civil Procedure was filed by the present petitioners for stay of Title Execution Case No. 56 of 1991 which was rejected by the Trial Court by the impugned order dated 28.6.93.