JUDGMENT :

Bibhas Ranjan De, J.

Case of the Plaintiff/petitioner:-

1. The instant execution case arose out of a partition suit being CS no. 3 of 2005 in respect of Premise no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013 along with other proprieties, which was compromised between the parties and one preliminary decree was passed on 8th March , 2005 by consent of the parties to the suit. Thereafter, parties to the suit arrived at a settlement and Terms of Settlement was signed by the parties and their respective Ld. Advocates filed before the Hon’ble Court on 19th December, 2007 when final Decree was passed by this Hon’ble Court in terms of settlement. Thereafter, on 24th September, 2013 Hon’ble Court allowed the application filed by the petitioner seeking certified copy of the decree dated 19th December, 2007 and that was allowed by the Court directing the department to issue certified copy within a week. Plaintiff/petitioner in terms of that decree, plaintiff became the sole and absolute owner of Lot ‘A’ of premises no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013. Lot ‘B’ and ‘C’ of the said premises were allotted to the original defendant no. 1 & 2(since deceased).

2. The Original Plaintiff, since deceased paid Rs. 10,00,000/- to the original defendant no. 1 in terms of settlement by issuing a cheque which was encashed thereafter, by that payment original plaintiff obtained south-west tenanted portion of the said premises. To that effect, a draft deed of conveyance was duly stamped but said deed has not been executed and still awaiting execution by the heirs of original defendant no. 1, since deceased. Though, original defendant no. 1, during his lifetime, issued letters of Attornment in respect of said tenanted portion whereby he relinquished his right in favour of the plaintiff in terms of settlement. Original plaintiff made all payment in terms of settlement in favour of original defendant no. 1 and 2. Thereafter, several proceeding was initiated by the original defendant no. 1 before this Hon’ble Court.

3. One receiver was appointed at the instance of defendant No. 1 in respect of schedule A property in connection with GA no. 1361 of 2008 which was disposed of by this Hon’ble Court on 11th January, 2010. Against that order an appeal was preferred being no. A.P.O.T 106 of 2011which was dismissed. Thereafter, defendant no. 1 filed one application being GA No. 1493 of 2009 for re-calling the decree dated 19.12.2007 on the basis of settlement where no interim order was passed. GA No. 1361 of 2008 was finally disposed of by the Hon’ble Single Judge on 07.03.2011with a direction upon Kolkata Municipal Corporation to consider the application, if submitted by the defendant no.1 in respect of construction within Lot ‘B’ of schedule A property in accordance with the provisions for construction.

4. The order dated 07.03.2011 was challenged in appeal being no. APOT no. 106 of 2011 which was dismissed. Original defendant no. 1 again preferred an appeal being no. APOT no 4223 of 2010 which was disposed of by the judgment and order dated 10.12.2012 by the Hon’ble Division bench dismissing the appeal holding inter alia:-

A. that the question of setting aside of compromise decree can’t be re-opened in view of the order dated 07.03.2011 in APOT no. 106 of 2011.

B. no reason was found to interfere with the decision of the Single Judge. C. Prayer for re-examining or re-considering of compromise decree was found untenable by the Hon’ble Court. D. That the question of sanction of building plan submitted by the defendant no. 1 was found to be an exclusive domain of Kolkata Municipal Corporation. Hon’ble appellate Court further opined that original defendant no. 1 submitted building plan for construction of four storied building instead of construction of a stair case, kitchen, water reservoir and a toilet in Lot ‘B’ of the schedule A property in terms of settlement.

5. Thereafter, on 3rd April. 2014 the present execution case was filed. Original de