MANOJ ROY Vs. GUNENDRA ROY

JUDGEMENT

(1.) THE predecessors-in-interest of the present petitioners, claiming themselves to be co-owners of the suit premises, instituted, Title Suit No. 17/1989, seeking eviction of the defendant, who is respondent no. 1 herein, from the suit premises. The suit came to be decreed, on 13-3-1998, the decree being, for, inter alia, delivery of possession of the decretal property by evicting the defendant-judgment-debtor, his men and agents therefrom. Against the decree, so granted by the learned Assistant District judge, North Tripura, an appeal was preferred and by judgment, dated 13-3-1998, passed in Title Appeal No. 05/93, the learned District Judge, North Tripura, allowed the appeal and the decree for eviction of the defendant-judgment-debtor was accordingly set aside. The first appellate judgment and decree were put to challenge by way of second appeal, which gave rise to RSA no. 26/98. This appeal was allowed by judgment and order, dated 10-8-2007, the decree, passed by the learned First Appellate court, was set aside and the decree for eviction, granted by the learned trial Court, was accordingly restored. The decree-holders, then, put the decree into execution, which gave rise to case No. Execution 01 / (T)/2008 in the Court of the learned Civil Judge (Sr. Division), North Tripura, Kailashahar.

(2.) IN course of time, the learned executing Court issued writ for delivery of possession of decretal property in favour of the decree-holders. It was, at this stage, that the respondent No. 2 herein made an application, under Order XXI, Rule 97 read with rule 101 of the Code of Civil Procedure (in short, 'the Code'), resisting execution of the decree, the case of the respondent No. 2 herein, while so resisting the decree, being, in brief, thus. The decretal property was jointly occupied by the objector i. e. respondent No. 2, and the judgment-debtor, i. e. respondent No. 1, but the decree, in question, had been passed without impleading the objector as one of the parties to the suit or in any subsequent proceedings. The objector was, thus, not bound by the decree aforementioned and the same would, if allowed to be executed, cause irreparable injury to the objector. Besides filing the above application under Order XXI, Rule 97, respondent No. 2 herein also filed a petition, in the said execution proceeding, seeking stay of the execution of the impugned decree pending hearing of his application made under Order XXI. Thereafter, an application was made by the objector, under Section 24 of the Code, in the Court of learned District judge, North Tripura, Kailashsahar, and this application came to be registered as Civil misc. Case No. 07/2008. In this transfer application, the objector alleged that though he had made an application under Order xxi, Rule 97, neither the said application had been registered by the learned execution Court nor was any order passed on the said application or on his application seeking stay of the execution proceeding. By order, dated 26-3-2008, passed in Civil Misc. Case No. 07/2008, the learned District judge, on the basis of the submissions made on behalf of the objector, directed issuance of notices to the decree-holders and, in the interim, not only stayed the execution proceeding, but also directed re-call of the writ, if any, already issued for execution of the decree. It is this order, dated 26-3-2008 which stands impugned, in the present revision, by the decree-holders by making an application under Article 227 of the Constitution of India.

(3.) I have heard Mr. S. M. Chakraborty, learned Senior counsel, for the decree-holders-petitioners, and Mr. A. K. Bhowmik, learned Senior counsel, appearing on behalf of the respondent No. 2.