IMPORTANT POINT
The court established that a suit seeking similar relief to an ongoing execution proceeding under Order 21 Rule 97 CPC is not maintainable, emphasizing the exclusive jurisdiction of the executing court.

JUDGMENT :

Heard Mr. P.K. Roy, learned Senior counsel assisted by Mr. S.K. Chakraborty, learned counsel for the appellants and also heard Mr. D. Mozumder, learned Senior counsel assisted by Mr. S. Biswas, learned counsel for the respondents.

2. In this appeal, under Section 100 of the Code of Civil Procedure, 1908, the appellants have challenged the correctness or otherwise of the impugned judgment and decree dated 22.12.2016 passed by the learned District Judge, Karimganj, in Title Appeal No.04/2013, whereby the learned District Judge, Karimganj, hereinafter the First Appellate Court, affirmed the judgment and decree dated 27.02.2013 passed by the learned Civil Judge, Karimganj, in Title Suit No.6/2007. It is to be noted here that vide impugned judgment and decree dated 27.02.2013, the learned Civil Judge, Karimganj, has dismissed the Title Suit No.6/2007.

3. The background facts leading to filing of the present appeal is briefly stated as under:-

“The predecessor-in-interest, namely, late Debeswar Choudhury of the respondent Nos.1 to 5 in this appeal, as plaintiffs instituted a suit, being Title Suit No.39/1984, renumbered as Title Suit No.33/1995, against one Mukteswar Choudhury and others in the year 1984 for a declaration that he had landholder’s right, Maliki right over the suit land and the houses and also for declaration that the defendants are licensee under him and prayed for their eviction. The case of the plaintiffs was that after the death of his father late Dinomoni Choudhury, the suit property was transferred in his name by his mother and sister by executing a gift deed No.6390, dated 26.09.1962 and the defendants are the licensee who were allowed to stay in the suit property only and they have no right, title and interest over the suit property. Then, after hearing the parties, the learned Trial Court vide judgment and decree dated 20.01.1998 decreed the suit in favour of late Debeswar Choudhury, the predecessor-in-interest of the present respondents, declaring that he is the sole owner of the suit land and the defendants were the licensee without any right, title and interest and on such count, they are liable to be evicted from the suit property.

Then, being dissatisfied the defendants had preferred one Title Appeal No.1/1998, which came to be dismissed on 28.06.1999. Thereafter, the defendants had preferred one regular second appeal, being RSA No.1/1999 and the same also came to be dismissed on 31.08.2006 by this Court. Thereafter, the judgment and decree dated 28.01.1998 passed in Title Suit No.33/1995 was put into execution by filing Title Execution Case No.03/2007 by the legal heirs of decree-holders of late Debeswar Choudhury, the respondent Nos.1 to 5 herein this appeal. Thereafter, the successor-in-interest of late Dinomoni Choudhury filed a suit, being Title Suit No.06/2007 praying for a declaration that the deed of gift, being No.6390, dated 26.09.1962 and the power of attorney mentioned in the said deed of gift are illegal, collusive, fraudulent and void ab initio and therefore, are liable to be cancelled with a further declaration that the judgment and decree dated 20.01.1998 in Title Suit No.39/1984, renumbered as Title Suit No.33/1995, passed in favour of late Debeswar Choudhury, the predecessor-in-interest of respondent Nos.1 to 5 in this appeal, is illegal, fraudulent and liable to be set aside. While the said suit was pending, the present appellants had filed a petition under Order 21 Rule 97 of the CPC in Title Execution Case No.3/2007, which was registered as Misc. Case No.85/2011 praying for the same relief as in the Title Suit No.6/2007. While the Misc. Case No.85/2011 was pending for hearing, the Title Suit No.06/2007 was dismissed by the learned Trial Court vide judgment and decree dated 27.02.2013 on the preliminary ground that in view of the provision of Order 21 Rule 97 CPC, all the question relating to right, title and interest in the property can be decided and on such count, the suit is