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2011 Supreme(Cal) 1164
High Court of Judicature at Calcutta
PINAKI CHANDRA GHOSE & TAPAN KUMAR DUTT
Chandan Choudhury
Versus
Shree Iswar Satyanarayanjee
G.A. Nos. 1156 of 2005, 990 of 2005, 486 of 2005, 988 of 2005, 989 of 2005, 1157 of 2005, 1158 of 2005, 1159 of 2005, 1160 of 2005, 1161 of 2005, 1162 of 2005, 1163 of 2005, 1164 of 2005, 1167 of 2005, 1168 of 2005, 1169 of 2005 & 1170 of 2005.A.P.O. Nos. 175 of 2005, 159 of 2005, 161 of 2006, 162 of 2005, 176 of 2005, 177 of 2005, 178 of 2005, 179 of 2005, 180 of 2005, 181 of 2005, 182 of 2005, 183 of 2005, 184 of 2005, 185 of 2005, 186 of 2005 & 189 of 2005
Decided On : 24-08-2011
For the Appellant:B.K.Bachayat ,Sr.Adv, B.K.Jain, Advocate.
For the Respondent:S.S Bhutoria, Advocate.
An Executing Court has the jurisdiction to adjudicate the rights of third parties who claim independent rights over the property in question in an execution proceeding and must finally dispose of the application by passing a final order.
Headnote:
THIKA TENANCY - DECREE EXECUTION - RIGHT OF THIRD PARTIES - JURISDICTION OF EXECUTING COURT: An Executing Court, when faced with a third party's claim of independent right over the property in question, must adjudicate such right before ordering eviction. If the third party fails to establish their right/title, the decree-holder should be put into possession.
Fact of the Case:
Various persons, including Thika Tenants and Bharatiyas, filed applications to resist the execution of a decree passed in a suit for eviction of Sri Ranisati Jute Pvt. Ltd. from the suit property. The Thika Tenants claimed independent rights over the property and sought adjudication of their rights in the execution proceeding.
Finding of the Court:
The Court held that the Executing Court has the jurisdiction to adjudicate the rights of third parties who claim independent rights over the property in question in an execution proceeding. The Court further held that if the third party fails to prove their right/title, the decree-holder should be put into possession.
Issues: 1. Whether an Executing Court has the jurisdiction to adjudicate the rights of third parties who claim independent rights over the property in question in an execution proceeding? 2. Whether the Executing Court can grant interim orders based on a prima facie case of the third parties?
Ratio Decidendi: 1. An Executing Court has the jurisdiction to adjudicate the rights of third parties who claim independent rights over the property in question in an execution proceeding. 2. In a proceeding under Order 21 Rule 97 read with Section 101 of the Code of Civil Procedure, the Executing Court must finally dispose of the application by passing a final order and cannot direct execution followed by way of interim measure against such third parties keeping the application pending.
Final Decision: The Court set aside the impugned order and directed the Executing Court to dispose of the execution application finally on the basis of the affidavits filed pursuant to the impugned order.
PINAKI CHANDRA GHOSE, J.
Instead of taking up the applications filed by the parties we hear out all the appeals since all the appeals are directed against an order dated 23rd March, 2005 whereby the Hon’ble Single Judge passed various interim orders in pending applications filed by the third parties in a proceeding for execution of recovery of possession. It appears to us that the applications had been taken out by several applicants to resist the execution of a decree passed in the Civil Suit No.9 of 2003. The said decree has been passed on an application under Chapter 13A of the Original Side Rules of this Honble Court evicting the defendants Sri Ranisati Jute Pvt. Ltd.
Being aggrieved these appeals have been filed by the parties and claimed to have possession of the portion of the said premises in question.
By a registered Deed of Lease and assessment dated 22nd August, 1991 the deities granted a lease in respect of the premises in question to Sri Ranisati Jute Pvt. Ltd. The Deities filed the suit against Sri Ranisati Jute Pvt. Ltd., lessee claiming its eviction from the said premises.
By an order dated 24th March, 2004 an application was filed by the deities under Chapter 13A of the Rules of this Honble Court and a decree was passed directing eviction of Sri Ranisati Jute Pvt. Ltd. the defendant. It is to be noted that the decree was passed by the consent of the parties. By the consent of the parties the decree provided that receiver be appointed to take symbolical possession of the premises. It is also to be noted that defendant was not in physical possession of the premises. It is further submitted that the decree was obtained in collusion with the said Sri Ranisati Jute Pvt. Ltd by the decree holder. A number of persons including, Sri Chandan Choudhury, the appellant herein who claimed to be Thika Tenant were in possession of the premises.
These Thika Tenants were in actual physical possession of the premises either by themselves or through their Tenants or Bharatias.
It is the case of the appellants that they were not a party in the suit and they claimed their right/title in the suit property independently and claimed themselves to be Thika Tenants under the Calcutta Thika and Others Tenancies and Lands (Acquisition and Regulation) Act, 1981. Accordingly, application was filed praying for leave to prefer an appeal which was granted by the Court.
Two of the Thika Tenants namely Bharati Barick in G.A. No. 517 of 2005 and Gopal Shaw in G.A. No. 518 of 2005 applied for being examined pro interesse suo and also under Order 21 Rules 97 to 102 to establish their rights as Thika Tenants in the said property. The two applications were moved by the said Tenants and prayed for stay of execution of the decree.
The said two applications and also an application of Bharatiyas were disposed of by the said common judgment dated 23rd March, 2005 by the Court.
By the judgment and order dated 23rd March, 2005 the right, title and interest of all the Thika Tenants including the appellants and the Bharatiyas at the said premises were finally adjudicated and decided. It is the case of the appellants that none of the Thika Tenants of the said premises except Bharati Barick and Gopal Shaw was heard but their rights to property were completely adjudicated upon by the Hon’ble Single Judge.
During the hearing of the two applications, it appears that the learned Trial Court called for the records of Thika Controller and examined them. However, opportunity was granted to the two Thika Tenants to inspect the said records of the Thika Controller. By the judgment and order the Tenants were directed to vacate within two weeks and the two applications were directed to be heard.
In G.A. No. 517 of 2005 the Court directed as follows:-
“Therefore, I direct the Receivers shall not take physical possession of this portion of the plot provided of course, this applicant deposits a sum of Rs.3,000/- in advance with the Joint Receiver and go on
