Aswini Kumar Samanta vs Aditya Kumar Samanta

Sudip Ahluwalia, J.—This Revisional application is directed against the Order No. 27 passed by the learned Civil Judge, (Junior Division), 1st Court at Midnapore on 17.02.2011 in Title Execution Case No. 1 of 2009 of his Court. The background of the matter is that the OP No. 1 had originally filed the Title Suit No. 137 of 2002 in the said Court against other Opposite Parties/defendants including the O.Ps. 2 and 3 who were the principal defendants therein. The suit was decreed in favour of the Plaintiff/OP No. 1 on 10.01.2008. Thereafter he filed the aforesaid Title execution case in the said Court and during the course of such execution proceedings, possession of the decretal property was ordered to be delivered in favour of the said OP/Decree-Holder. The present petitioner however appeared in the Court and filed his application under Order XXI, Rule 99 of the CP Code by alleging that he had already purchased the decretal property, and was actually in physical possession of the same when he was allegedly dispossessed therefrom. While his application under Order XXI, Rule 99 of the CP Code was registered as Mis. Judicial Case No. 3 of 2011, the learned Court below vide its impugned Order however refrained from passing a Final Order on his separate application filed under Order, Rule 10 of the CP Code in which he had prayed for being added as a party in the Execution case. The short question now involved in this matter is basically whether the petitioner who was not a party to the original Suit in which the decree was passed, should be added as party in the subsequent Execution case filed by the Decree-Holder to enforce the apparent relief granted to him in the suit, or not.

Admittedly the Sale Deed on which the petitioner relies upon to assert his own Title in respect of the decretal property was executed in his favour after passing of the decree on 10.01.2008. But it also appears that the property in question was sold to him by one Laxmi Kanta Bera who is stated to have purchased the same from the erstwhile owner Shrimati Minati Burman (OP No. 2) wife of Parameshwar Burman (OP No. 3) who were the original defendants in the Title Suit filed by the (OP No. 1) Sri Aditya Kumar Pal. Such registered Sale Deed in favour of the petitioner''s alleged vendor Laxmi Kanta Bera was made on 07.02.2005 i.e., during pendency of the Title Suit No. 137 of 2002.

Now the specific contention of the petitioner in Para-12 of his application is that the said Title Suit was actually instituted by the Plaintiff/Decree-Holder in collusion with the husband of Shrimati Minati Burman (i.e., the original vendor to the petitioner''s own vendor Laxmi Kanta Bera), and that he was not made a party in the suit.

The Suit was ultimately decreed on 10.01.2008 and by virtue of the said decree the Right, Title and Interest of the Plaintiff/Decree-Holder was declared as against the original defendants including Minati Burman and her husband. The defendants were further permanently restrained from disturbing the plaintiff''s peaceful possession in the suit property. However the plaintiff decree holder subsequently filed the execution case in which strangely he prayed for "recovery of possession" from the original defendant Shrimati Minati Burman by alleging that she had failed to deliver possession in respect of the decretal property passed against her. Ultimately in execution of the said decree the petitioner who had already constructed his "Chala" (construction) upon the suit land after having purchased the same from Laxmi Kanta Bera, was illegally dispossessed therefrom.

He therefore filed his application under Order XXI, Rule 99 of the CPC along with a separate petition under Order 1, Rule 10 CPC praying for being added as a party in the Execution case. But while his application under Order XXI, Rule 99 was registered as J. Mis. Case No. 3 of 2011, the learned Court below did not pass any order on the other petition for making him a party in the Execution case and kept the matter pending by observing, "......this Court of the opinion that the petition dated 29.01.2011 filed by the petitioner of the execution proceedings while be disposed of after hearing the J. Mis. Case under Order XXI, R. 99 CPC being J. Mis. Case No. 3 of 2011...."

Learned Advocate for the petitioner has placed a decision of the Supreme Court in Civil Appeal No. 10588 of 1995 in the case of M.V. Karunakaran Vs. Krishanan (dead) by Lrs., . In that case the respondent who was not originally a party in the suit, on being found to be in possession as on the date when delivery of possession was sought to be effected, was permitted to raise objection under Order XXI, Rule 97 of the CP Code. In this regard the Apex Court had observed--

"It has been found as of fact by all the three Courts that after purchasing the property from the heirs and legal representatives of Madhavan, the respondent herein had been put in possession and they had been residing therein when the auction sale was effected. He had caused some improvements and a new building had also been constructed by him. As the suit was filed after the deed of sale was executed and registered, the respondent was a necessary party. He was not arrayed as a party in the suit. He having been found to be in possession of the property as on the date when the delivery of possession of the property was sought to be effected; a fortiori he had a right to obstruct thereto. Once the title in respect of the property in question is found to be existing in the obstructionist, an application for removal of the obstruction as envisaged under Order 21 Rule 97 of the Code of Civil Procedure has rightly been determined in favour of the appellant."

Now in the present case the application filed by the petitioner under Order XXI, Rule 99 of the CPC for restoration of possession had already been admitted by the Ld. Court below and is being adjudicated upon. The Court has refrained from passing any categorical order on his separate petition under Order 1, Rule 10 of the CPC for being made a party in the Execution case, pending a final decision of his own J. Mis. Case under Order XXI, Rule 99. There appears to be no perversity or illogical approach adopted by the learned Court, since all questions arising out of the alleged wrongful dispossession of the petitioner from the decretal property are required to be determined in his Misc. Case itself. So, whether or not his actually a necessary or even a proper party to the execution case can best be determined from the result of his Mis. Case under Order XXI, Rule 99 CPC. It is not that the learned Court below by withholding its Final order on his separate application under Order 7, Rule 10, CPC has in any manner rejected the prayer contained therein. It has only deferred its decision pending result of the Misc. Case filed by him from the result of which all his Right, Title and Interest in relation to the disputed property, or the pending proceedings in which he was not originally a party, would be determined. For this reason the Court finds no merit in this revisional application which is accordingly dismissed on contest without costs.