The present application is taken out challenging the Compromise Decree passed in C.S. No. 771 of 1981 on the ground of collusion and fraud. In other words, it is an application taken out by the St. Marry’s Nursing Home Private Limited questioning the executability and enforceability of the said Compromise Decree and invited the Court to adjudicate the right, title and interest under Order XXI Rule 101 of the Code of Civil Procedure.

Undisputed Facts:

2. Before proceeding to deal with the points agitated by the respective parties the salient facts are narrated hereinafter.

3. By registered Deed of Sale executed between one R.N. Ghosh, since deceased, the predecessor-in-interest of the present plaintiffs and the judgment debtor, the Credit Union Corporation Enterprises Limited for a period of twenty one years commencing from 1st July, 1960. The entire premises No. 2/1, Ho Chi Minh Sarani, formerly known as Harrington Street, Kolkata measuring about 1 Bigha, 17 Kathas, 5 Chhatak, 32 Square Feet of land together with the structure erected thereupon was demised unto and in favour of the said judgment debtor. Apart from the other terms and conditions embodied therein two of such conditions which assumed importance for determination of the instant application and requires to be noted are that the lessee was debarred from creating any sub-lease or parting with possession either wholly or in part and there was no contemplation for renewal and/or extension of the period reserved therein. Despite such prohibition an agreement was entered into between the judgment debtor and Dr. A.K. Deb to set up and start a nursing home business in a portion of the demised premises and such agreement was entered into on 20th November, 1972. Dr. A.K. Deb constructed and established St. Marry’s Nursing Home and was running and managing its affairs as sole proprietor thereof. Subsequently, it was converted into a partnership firm and thereafter a private limited company was incorporated who took over the assets and liabilities and the control of the said nursing home. The lease expired by efflux of time on the advent of 30th June, 1981 but before the suit for recovery of possession could be filed a suit being Title Suit No. 1211 of 1981 was instituted by Dr. A.K. Deb in the City Civil Court at Kolkata for declaration and injunction. The predecessor-in-interest of the present plaintiff namely Smt. Durgabati Ghosh, the widow of Rabindra Chandra Ghosh, instituted a suit for recovery of possession against the judgment debtor being C.S. No. 771 of 1981 before this Court on the ground of expiration of lease by efflux of time. Amidst the pendency of the suit filed before this Court by the predecessor-in-interest of the decree holders, the judgment debtor instituted a suit against Dr. A.K. Deb in the City Civil Court at Kolkata which gave rise to registration of M.S. No. 883 of 1982 claiming a decree for unpaid rent amounting to Rs. 75,000/-.

4. It further transpired that the Title Suit No. 1211 of 1981 instituted by Dr. A.K. Deb was transferred to this Court and was reregistered as Extraordinary Suit No. 15 of 1987 by invoking Clause 13 of the Original Side Rules. While the aforesaid suits before this Court were pending the suit being M.S. 883 of 1982 filed by the judgment debtor was decreed in their favour holding that Dr. A.K. Deb enjoined the status of a monthly tenant and not as a licensee as alleged by the judgment debtor in the said suit. It is pertinent to record that the suit transferred from the City Civil Court instituted by Dr. A.K. Deb stood abated in absence of any steps being taken for substitution of heirs and legal representative of the Dr. A.K. Deb who died during the pendency of the said suit. However, an application was taken out by the present applicant for their implement in C.S. 771 of 1981 asserting their right as monthly tenant and claimed immunity against eviction in the event the decree is passed against the judgment debtor therein