A third party resistor has a right to be heard in the matter of police help prayed under Rule 208 of the C.R.O. Volume I or in the execution proceeding in view of the persistence admittedly given by him or on his behalf on a claim of independent right and also challenging the decree on the ground of fraud.

The judgment of the Court was as follows :-

Both these two revisional applications have been heard analogously and would be governed by the following order.

2. Both the applications arise out of the order dated 24.756 passed by the learned Judge-in-Charge, Bench No.5, City Civil Court, Calcutta in Misc. Case No. 556 of 1996, filed by M/s. Capstan Shipping Estate (P) Ltd , the O.P. No.2 in C.O. No. 1649 of 1996 and petitioner in C. O. No 1650 of 1996 under Order 21 Rule 101 read with Section 151 CPC praying for adjudication of its right, title and interest in respect of the disputed property and for dismissing the ejectment execution case No 28 of 1996 pending in the said Court By the Impugned order the learned Judge has held that in view of the facts and circumstances of the case the application under Order 21 Rule 101 CPC does not lie but at the same time he has held that an enquiry into the matter should be made under Section 151 CPC. It is his categorical finding that although the Misc. Case dose not specifically lie under Order 21 Rule 101 CPC but the said Misc. Case is maintainable in law, under Section 151 of the CPC. The reasonings given by the learned Trial Judge may be quoted below :

"It is a fact that Order 21 Rule 101 CPC is not applicable 10 this case. It is also a fact that the applicant is a third party-resistor. According to Order 21 Rule 101 CPC third party-resistor cannot bring a separate suit. It is also a fact that Order 21 Rule 97 or Rule 99 CPC is not applicable in case of third party-resistor. Then the question arises as to what is the remedy of the third party-resistor. The answer is that the third party-resistor has no other alternative but to file a Misc. Case under Section 151 CPC. When the applicant has challenged the ex parte decree as a collusive one and submits that fraud bas been practised upon the Court to obtain ex parte decree, in that cage without hearing the Misc. Case No..556/96 or without recording the evidence on the points of collusion and fraud, the Misc. Case cannot be thrown out on the ground that it is not maintainable at all So I hold that the Misc. Case under Section 151 CPC is maintainable in law."

3. The learned Counsel appearing for Sliver line Forum Private Limited, the appellant-petitioner in C. O. No. 1649 of 1996 has contended that the above order passed by the learned Trial Judge is absolutely illegal and as such it should be set aside under Section 115 CPC. According to Mr. Majumdar, the learned Counsel appearing for the above petitioner. In view of the finding of the learned Trial Judge that such a Misc. Case is not maintainable under Order 21 Rule 101 CPC he should have dismissed the same outright as there was no scope to hear out the said Misc. Case independently under Section 115 CPC. Mr. Majumdar bas made strenuous efforts to argue on the merits of the opposite party No. 28 application under Order 21 Rule 101 read with Section 151 CPC to bring home the point that the said O. P. No.2 has no case at all to be decided under Order 21 Rule 101 or Independently under Section 151 CPC. On the other hand, Mr. Panja and Mr. Roy chowdhury, the learned Counsels appearing for the O.P. No.2 Messers. Capstan Shipping etc. who is also the petitioner In the second revisional application have contended that the said company has an independent right to be adjudicated Upon under Order 21 Rule 101 CPC or at least under Section 151 CPC But I must note that the merits of the case pending before the learned Trial judge have not yet been considered by the Trial Judge because the impugned order was passed by the Trial Judge on the point of maintainability of the above MISC. Case taken on behalf of the present petitioner before him. There is no finding of the Trial Judge in the impugned order about the merits or otherwise of the Misc. Case. In that view of the matter this Court will not make any observation on the merits of the case. It is only to be seen whether by passing the impugned ord