PRABIR KUMAR SAMANTA, J.

( 1 ) THIS revisional application under Section 115 of the Code of Civil procedure is directed against the order dated 22-7-2002 passed in Misc. Case No. 44 of 2000. The aforesaid Misc. Case arises out of an application filed by the opposite parties herein under Order 21, Rule 99 and 101 of the Code of Civil Procedure. The trial Court by the aforesaid impugned order held that the said Misc. Case is maintainable in law by rejecting the contention of the petitioner.

( 2 ) THE petitioner filed a suit for specific performance of contract being T. S. 185 of 1991 against the opposite parties Nos. 3 to 7. At the appellate stage a compromise decree was passed and it is the case of the petitioner that while she made an application in the suit for police help for taking possession of the suit property, the sons of the opposite party No. 3 who was the original defendant No. 1 and who alone entered into an agreement to sell the suit property to the petitioner, resisted the execution of the decree. The misc. case that arose out of the application filed by the sons of the opposite party No. 3 was dismissed. Such dismissal was further affirmed by this Court. The petitioner thereafter took over possession of the suit properly pursuant to the orders made by the trial Court in the said suit and ultimately by an order dated 15-9-2000 it was recorded in the suit that the same was disposed of upon full satisfaction of the decree.

( 3 ) AFTER the aforesaid order was made the opposite parties Nos. 1 and 2 herein filed an application under Order 21, Rule 99 and 101 read with Section 151 of the Code of civil Procedure in the self same Court in connection with the above suit. On the basis of the said application the instant Misc. Case No. 44 of 2000 has been registered by the trial Court. In substance the case of the said opposite parties is that the original defendant No. 1 had no title to the suit property to convey in favour of the petitioner and the sons of the opposite party No. 3 i. e. the sons of the defendant No. 1 in the suit are the caretakers of the suit property. The aforesaid decree in the said suit and delivery of possession were thus made in collusion between the petitioner and the said opposite parties.

( 4 ) MR. Sudhir Dasgupta, learned senior advocate appearing on behalf of the petitioner raised question as to the maintainability of the said Misc. Case on the

Page 2 of 5

grounds that the proceeding for delivery of possession pursuant to the decree passed in a suit for specific performance of contract is a proceeding in the suit Itself and therefore any provisions of Order 21, of the Code which relates to the execution of decrees and orders cannot be made applicable in relation to a dispute arising out of orders made for delivery of possession in the suit itself pursuant to a decree for specific performance of contract passed by it. Secondly, the suit having been finally disposed of, there being no proceeding pending, far less to speak of an execution proceeding, the application under Order 21, Rule 99 and 101 is not maintainable.

( 5 ) I propose to deal with the above second question before dealing with the questions as raised above in this revisional application. Order 21, Rule 99 of the Code reads as under : " (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. "

( 6 ) UPON bare reading of the aforesaid provision it does not appear that for the purpose of making of an application thereunder, the party making such application must be in possession of the suit property. On the contrary it enables a

Click Here to Read the rest of this document