An executor has the right to object to eviction proceedings regardless of the probate status of the Will, ensuring protection of the testator's estate, per the provisions of the Indian Succession Act.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present appeal has been preferred by the judgment resistor in Title Execution Case No. 12 of 2023 against an order whereby her application under Order XXI Rules 97 to 101 of the Code of Civil Procedure (CPC) was dismissed as not maintainable.

2. The brief facts of the case are as follows:

3. A property situated in Salt Lake (Bidhannagar), in the proximate suburbs of the city of Kolkata, is the subject-matter of the present lis. A registered deed of lease was executed in respect of the suit property by the State of West Bengal in favour of one Sunil Kumar Roy (since deceased) on September 26, 1972. The said Sunil Kumar Roy entered into a tenancy agreement with two companies, namely M/s Triveni Holding Pvt. Ltd. and M/s Argan Traders Pvt. Ltd.

4. Subsequently, one Smt. Mira Roy, the widow of Late Sunil Kumar Roy, instituted a suit bearing Title Suit No. 74 of 2011 before the learned Civil Judge (Senior Division), Second Court at Barasat, District-North 24 Parganas, inter alia for declaration that the transaction between the Late Sunil Kumar Roy and the aforesaid two Companies (arrayed in the suit as defendant nos. 1 and 2) was a loan in substance, a decree for delivery of possession of the suit property in favour of the plaintiff Smt. Mira Roy and for permanent injunction and other consequential reliefs. In the said suit, the present respondent Sri. Sourav Roy, the son of Late Sunil Kumar Roy and Smt. Mira Roy, was impleaded as proforma defendant no.3. Subsequently, the said suit was dismissed on June 15, 2016. An appeal was preferred by the plaintiff Smt. Mira Roy against the said dismissal, giving rise to FA No. 212 of 2016, which was allowed on contest by a judgment and decree dated February 16, 2023, thereby setting aside the judgment and decree of the trial court and decreeing the suit. A Special Leave Petition, bearing SLP (Civil) No. 27260 of 2023, filed against the same, was rejected at the admission stage.

5. The decree holder levied execution of the decree, giving rise to Title Execution Case No. 12 of 2023. In the meantime, the original decree holder Mira Roy having died, the present respondent stepped into her shoes and was substituted as the decree holder.

6. The present appellant Smt. Ganga Bohra filed an application under Section 47 of the Code of Civil Procedure, bearing Miscellaneous Case No.140 of 2024, which was dismissed on February 28, 2025. A revisional application bearing CO No. 1401 of 2025 was preferred against the same.

7. Prior thereto, the appellant had also taken out an application under Order XXI Rules 97 to 101 of the CPC, giving rise to Miscellaneous Case No. 30 of 2024. In the said application, the appellant claimed right, title and interest in the property on the strength of a Will purportedly executed by Late Sunil Kumar Roy in favour of the appellant, naming her as the Executor as well, on March 15 of 1994. It was pleaded that Miscellaneous Case No. 283 of 2014 had been filed by the appellant for grant of probate of the said Will, on the demise of the testator Late Sunil Kumar Roy, which subsequently turned contentious on the respondent and the decree holder filing objection thereto, and was registered as OS No. 7 of 2016. The said probate suit is still pending.

8. By the impugned judgment, the said application, bearing Miscellaneous Case No. 30 of 2024, was dismissed as not maintainable, primarily on three grounds.

9. First, the executing court held that the objection by a third party in anticip