CHAPALA DEVI Vs. RAKHAL CHANDRA SEN GUPTA

JUDGEMENT

(1.) The facts leading to the presentation of this appeal, briefly stated, are these: There was a building known as 'Navin Kutir' belonging to Shri Navin Chandra Dey. In the year 1936, a lease was granted to Shri Rakhal Chandra Sen Gupta by his sons and heirs, who are decree-holders 1 to 5. This lease was renewed on the 11th September, 1944, for a period of eight years and it ultimately expired in June, 1953. it appears that one of the heirs of Shri Navin Chandra Dey, namely, Bisheshwar Dey, who had 2/9th undivided share in the building, sold 1/3rd of that share fay a sale deed, D/- the 16th June, 1948, to Shrimati Chapala Devi, decree-holder No. 6. Subsequently, the said Bisheshwar Dey sold his further 1/3rd undivided share out of his 2/9th share to the same Shrimati Chapala Devi by a sale deed in the year 1950. In July, 1953, there was a partition of the building in question and the portion marked Block E on the sketch map fell to the share of Bisheshwar Dey, representing his 2/9th share. Thereafter, on the 31st July 1953, Bisheshwar Dey executed a third sale deed in favour of Shrimati Chapala Devi with respect to his remaining 1/3rd share ost of his 2/9th shars. Thus, Shrimati Chapala Devi became the owner of the entire 2/9th share in the building winch, on partition, was represented by the said Block E of the sketch map. After the expiry of the lease, a proceeding for eviction was started by the decree-holders before the Rent Controller, which was allowed and a decree for eviction of the lessee was passed in favour of these decree-holders 1 to 6. In early 1956, the lessee, who is respondent No. 1 and who will hereafter be referred to as 'the respondent', tiled Title Suit No. 23 of 1956 in the First Court of the Subordinate Judge at Patna for a declaration that the three sale deeds executed in favour of Shrimati Chapala Devi, who is the appellant in this court, were illegal and invalid and were not binding on him, and also for specific performance of the contract contained in the lease of the year 1944 giving a right of pre-emption to him. That suit was decreed in part and it was held that the first two sale deeds of 1948 and 1950 were invalid and not binding on the respondent. It was further held in that suit that the respondent was entitled to specific performance of contract in respect of the 2/3rd share of Bisheshwar Dey covered by the first two sale deeds on payment of the consideration money. The suit was, however, dismissed with respect to the third sale deed dated the 31st July, 1953. Apparently, therefore, the appellant, according to this decree, retained an interest in the leasehold property to the extent of 1/3rd share conveyed to her by the third sale deed. In the suit a prayer was also made for permanently injuncting the appellant from taking delivery of possession of the building in question, but that prayer was not granted. An appeal against the above decree, being First Appeal No. 451 of 1961 has been filed in the Court, which is still pending. The respondent, however, deposited the consideration money on the 11th October, 1958, by a chalan (Ext. 2). In the year 1957, however, all the six decree-holders started execution of the) decree for eviction passed by the Controller in Execution Case No, 155 of 1956 of the Munsif's First Court at Patna. In that execution, besides a prayer for eviction, a sum of Rs. 208/-, which was awarded as costs, was also sought to be realised. Subsequently, on the 27th March, 1957, the appellant filed Execution Case No. 278 of 1957 against the respondent for execution of the sama decree of the House Controller by delivering possession of the leasehold building for the benefit of all the decree-holders under Order 21, Rule 15 of the Code of Civil Procedure, inasmuch as, according, to her, the other decree-holders were not showing due diligence in executing the decree in the former execution case.

(2.) In the meantime, two of the decree-holdersf-namely, Phanindra Nath Dey and Sudhir Kumar Dey, entered into compromise with the respondent and relinquished their right to execute the decree in their favour, and a part satisfaction of the decree was noted in the execution case. It further appears that both these decree-holders leased out their interest in the building to the respondent and recognised him as a tenant with respect to their interest in the building in question. It also appears that in the year 1957 the respondent instituted Title Suit No. 37 of 1957 for a declaration that the eviction order passed by the Controller was invalid. That suit was dismissed by the trial court; but, on appeal by the respondent, which was numbered as Title Appeal No. 135 of 1960, the judgment and decree of the trial court was reversed end the suit was decreed declaring the eviction order to be invalid. A Second Appeal, being Second. Appeal No. 322 of 1963, filed by the appellant is pending in this Court. After the decision of the said title appeal, the appellant has filed a fresh eviction case against the respondent, which is numbered as Title suit No. 70 of 1953 and is still pending in the Court below.

(3.) In both the execution cases aforesaid, separate' objections under Section 47 of the Code of Civil Procedure were filed by the respondent objecting to the execution mainly on the ground that the decree had become in executable by reason of his acquiring the interest of the two decree-holders by a compromise and granting of a fresh lease and also on. the ground that, by virtue of the decree in title suit No. 23 of 1956, the appellant could, not execute the decree either in whole or for her share in the leasehold property.