The executing court has a duty to ensure physical delivery of the property in accordance with legal provisions, and applications related to the execution of a decree should be decided based on the grounds presented by the petitioner.

JUDGMENT :

Prasenjit Biswas, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated 26.08.2011 passed by the Learned Judge, 6th Bench, Small Causes Court, Calcutta in Ejectment Execution Case No. 212 of 2007 arising out of Ejectment Suit No. 1134 of 2002 the petitioner/decree holder has filed this application under Article 227 of the Constitution of India.

2. The petitioner being the land lord of the suit premises instituted a suit for ejectment against the proforma opposite parties nos. 1 to 6 who were the heirs of the original tenant Biswanath Sen. The Ejectment Suit No. 1134 of 2002 was decreed on contest by the learned Trial Court on 15.02.2007 whereby decree for recovery of khas possession of the case premises was passed in favour of the plaintiff. Challenging the said judgment and decree passed by the learned Trial Court the judgment debtors/proforma opposite parties nos. 1 and 6 (herein) filed an appeal being Title Appeal No. 63 of 2007 before the First Appellate Court. Thereafter, the plaintiff/ decree holder put the decree into execution by filing Ejectment Execution Case being No. 212 of 2007. In the meantime, proforma opposite parties (herein) vacated the suit premises on their own in or about January, 2008 and as the appellant/judgment debtor did not appear further before the Appellate Court, the said Title Appeal No. 63 of 2007 was finally disposed of by the learned Appellate Court on 28.02.2008 with a note that the present petitioner/plaintiff had already got the peaceful possession of the suit premises.

3. One Mahendra Kumar Jain filed an application in the Ejectment Execution Case No. 212 of 2007 claiming himself as a necessary party in the capacity of a subtenant in the ground floor of the suit premises under Order I Rule 10(2) of the Code of Civil Procedure. The said application was rejected by the Executing Court by an order dated 05.02.2009. Thereafter, the said Mahendra Kumar Jain filed another application under Order XXI Rules 97, 98, 99, 100, 101 read with Section 151 of the Code of Civil Procedure in the said Ejectment Execution Case instituted by the plaintiff/decree-holder describing himself as a sub-tenant in the ground floor of the suit premises with a prayer for adjudication of his right, title and interest therein. The said application was treated as Miscellaneous Case being No. 127 of 2008. In the said Misc. Case of 127 of 2008, an application was taken out by the son of the said Mahendra Kumar Jain namely, Sri Satyendra Kumar Jain under Order XXII Rule 3 of the CPC with a prayer for substitution in the application filed under Order XXI Rule 101 filed by his father who expired on 17.01.2010. The said application for substitution was allowed by the Executing Court by passing an order dated 06.04.2001. A direction was given by the Executing Court to file amended application filed under Order 21 Rule 101 of the Civil Procedure Code by May 21, 2001.

4. Opposite Party No. 7 (herein) filed an application under Article 227 of the Constitution of India being C.O. No. 1420 of 2011 challenging the order passed by the Executing Court dated 06.04.2011 in Ejectment Execution Case No. 212 of 2007 whereby date was fixed on 19.05.2011 for delivery of possession in favour of the decree holder in respect of the suit premises and which is prior to the date fixed by the learned Trial Court for filing amended petition in Misc. Case No. 127 of 2008. That C.O was disposed by this court on 28.07.2011 with giving directions upon the learned Trial Court and the relevant portions of the said order passed by this Court are hereby quoted as follows:

“The applicant is directed to file the amended misc. case within three weeks from date and that the opposite parties may file affidavit-in-opposition, if any, one week thereafter. Replay, if any must be filed within three days thereafter. The Learned Trial Judge shall fix the next date for hearing of the misc. case within seven days from the date of filing of the reply,