The executing court has the obligation to decide all questions, including those relating to right, title, or interest in the property, arising between the parties to the execution proceeding. The executing court must provide an opportunity for the parties to adduce evidence and cannot dispose of an application in a summary manner.

Mookherjee, A.C.J.

An application for substitution was preferred on behalf of the executor to the state of the respondent to the present appeal. In course of hearing, however, affidavits were filed by other heirs indicating to the Court that they had no objection to the impleadment of the executor in place and stead of the plaintiff/respondent, either by himself or along with other heirs. It was also stated before this Court that the Will left by the deceased had been probated.

2. In such view of the matter, we dispose of the substitution application and the connected affidavits by directing that executor as also all the heirs as mentioned in the affidavit of Srimati Jiwani Kumari Parakh be substituted in her place and stead and a formal amendment of the memorandum be carried out by the Department.

3. This is an appeal at the instance of an alleged subtenant in a shop room in the disputed premises. There was a decree which was conformed upto the Apex Court for possession and the said decree was put into execution. In the execution application, the present appellant was impleaded as a party along with a prayer that the delivery of vacant possession be made, amongst others, of the shop room known as “French Agency” in premises No. 7/1A, Lindsay Street, Calcutta. In the execution case, the present appellant filed an application, inter alia, asserting the though he was impleaded in the execution proceeding relating to premises No. 7/1A, Lindsay Street, he had a shop room being No. 7/1A at premises No. 7/1C, Lindsay Street by the name of “French Agency”, and in the background of such factual assertion, he prayed for, inter alia, a declaration that the decree in question was not binding on the applicant/present appellant and did not affect the space or tenancy in question under his occupation or enjoyment. In support of the said statement, the appellant/applicant furnished rent receipts showing the premises in which has tenancy existed. It is pertinent to note, at this stage, that the appellant was not impleaded as a party in the suit in which the decree in question had been passed upon an allegation that he was an unlawful subtenant. The learned trial Judge by his impugned order, dated 14th March, 1997, heard out three application, including the application of the present appellant and dispose of the same, inter alia, allowing the execution application. While passing the said order, the learned Trial Judge came to a finding that the “Firm Agency”, admittedly, belong to the relations of the deceased judgment-debtor and that the present appellant had attempted to make out a case that it was a joint tenant along with the judgment-debtor in respect of the said shop room. The rent receipts on which reliance was placed, according to the learned Judge, indicated that the judgment-debtor was the sole tenant in respect of the shop room, and as such, the learned Judge disbelieved the story of joint tenancy. Challenging the said order, as indicated hereinabove, the present appeal has been preferred.

4. It has been contended on behalf of the appellant that the proceeding for execution having acquired the status of a complete Code, the order passed therein having been given the status of a decree, it was necessary for the learned Trial Judge to embark upon an adjudication as to the propriety of maintainability of the execution application against the appellant, when his specific case was that he was not a tenant in the premises covered by the decree. The learned trial Judge disposed of the contention in a summary manner without any adjudication which was an illegal procedure.

5. On behalf of the contesting respondent, it was argued that if the appellant was not interested in the property, he was not affected by the order passed by the executing Court and, secondly, it was not necessary for the contesting respondent also, the plaintiff, to implead him as a party since the plaintiff’s case was that he was an unlawful subtenant. The language of