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CALCUTTA HIGH COURT
Partha Sarathi Chatterjee, J.
Deb Narayan Basu – Petitioner
versus
Sankari Sett and Ors. – Opp. Parties
C.O. 3240 of 2025
Decided on 2.9.2025
For the Petitioner:Mr. Partha Pratim Roy and Mr. Dyutiman Banerjee, Advocates
For the Opp. Party:Mr. Bikram Banerjee, Ms. Mou Halder, Ms. Kuheli Gayen, Ms. Shinjini Chakraborty, Ms. Adrita Dey and Mr. Sagar Dey, Advocates
IMPORTANT POINTS
(1) Resistance to execution proceeding – Proceeding initiated under Order 21 Rule 97, 98 ,99 and 101 of CPC and enquiry made under Rule 101 is in nature of suit.
(2) While dealing with application preferred under Order 21 Rule 97 or under Order 21 Rule 99 of PC, Court has power to determine question relating to right, title and interest of person who has come forward to resist execution proceeding.
(3) In an appeal preferred under Order 21 Rule 103 of CPC, Appellate Court cannot modify original decree.
Headnote:
(A) Civil Procedure Code, 1908 – Order 1X Rule 13 – Setting aside ex-parte eviction decree – Application rejected on the ground of delay – It has almost become a recurring phenomenon, particularly in eviction suits, that once decree for eviction is passed against tenant, associates, relatives, or other interested persons come forward in aid of judgment-debtor and attempt to set up an independent right with a view to obstruct execution process – Vide impugned order decree has been modified – Impugned order set aside and Misc. Appeal dismissed. (Paras 13, 17 and 18)
(B) Civil Procedure Code, 1908 – Order XXI Rules 97, 99, 101 and 103 read with Section 47 – Resistance to execution proceeding – Proceeding initiated under Order 21 Rule 97, 98 ,99 and 101 of CPC and enquiry made under Rule 101 is in nature of suit – In such a proceeding, question regarding right, title and interest is determined, and any separate suit by the person is barred by Section 47 of CPC – While dealing with application preferred under Order 21 Rule 97 or under Order 21 Rule 99 of PC, Court has power to determine question relating to right, title and interest of person who has come forward to resist execution proceeding – If a person, who is entitled to resist execution of the decree, fails to set up or establish independent right and instead claims any right through original tenant, then he shall be bound by decree – In an appeal preferred under Order 21 Rule 103 of CPC, Appellate Court cannot modify original decree. (Para 17)
Result: Revision Application allowed.
JUDGMENT
In the present case, the landlord, who inducted a tenant, namely, Mahitosh Bose way back in 1952, instituted a suit for eviction vide. Title Suit No. 892 of 1969 in 1969. In his effort to evict the tenant, he obtained a decree in his favour in 1981 and the judgment and decree passed in Title Suit no. 892 of 1969 was challenged in an appeal, F.A. No. 142 of 1982; however, the appeal was dismissed by a Hon’ble Division Bench of this Court.
2. Thereafter, the landlord/ decree-holder put the decree in execution in 1987. The execution application was registered as Ejectment Execution Case No. 293 of 1987.
3. Suddenly, in 1989, one Sudhir Kumar Bose, claiming himself to be the cousin of the original tenant, instituted a suit vide Title Suit No. 442 of 1989, seeking a declaration that the judgment and decree passed in the ejectment suit on 19.12.1981 is not binding upon him, as he was a pre-Act sub-tenant under Mahitosh Bose. Additionally, he prayed for a decree of permanent injunction restraining the landlord/decree holder from executing the decree passed in Title Suit No. 892 of 1969. In the schedule appended to the plaint of Title Suit No. 442 of 1989, only one room on the first floor with an attached verandah at the premises No. 72/1, Manicktala Street, P.S. Amherst Street, Calcutta-9, was mentioned as suit premises.
4. I am informed that the application under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) were filed by the petitioners before the Executing Court; however, the same has been rejected.
5. Meanwhile, after learning about the ex-parte decree passed in Title Suit No. 442 of 1989, the successor-in-interest of the original landlord filed an application under Order IX Rule 13 of the Code for setting aside the ex-parte decree, along with an application for condonation of delay. The Court found that there was no sufficient cause preventing the legal heirs of the landlord from preferring the application for setting aside the ex-parte decree within the prescribed period of limitation. Consequently, the application for condonation of delay was rejected, and the Miscellaneous Case was not admitted.
6. Aggrieved by the order rejecting the application for condonation of delay and, consequently, the refusal to admit the Miscellaneous Case, an appeal was preferred before this Hon’ble Court. However, the said appeal was dismissed.
7. Subsequently, before the Executing Court, the present petitioners who are the son and daughter of Sudhir Kumar Bose, the cousin of the original tenant filed an application under Order 21 Rule 99 of the Code to resist their dispossession from the suit premises in execution of the decree passed in Title Suit no. 892 of 1969. The application, which was subsequently registered as Misc. Case No. 113 of 2023, was rejected.
8. Challenging the order of rejection of Misc. Case No. 113 of 2023, an appeal under Order 21 Rule 103 of the Code was preferred before the Court of the learned Chief Judge, City Civil Court. By an order dated 25th November 2024, the learned Court below modified the original decree and directed that the decree be executed excluding one room on the first floor with an attached verandah at the suit premises, taking note of the schedule in the decree passed in Title Suit No. 442 of 1989. The order dated 25th August 2025 is under challenge in this revisional application.
9. Mr. Roy, learned Advocate representing the petitioner, submits that the learned Court below has decided to allow partial eviction; however, committed an error in excluding the verandah from the order.
10. Mr. Banerjee, learned Advocate representing the opposite party, submits that the present petitioner has no right to resist the execution of the decree. He contends that the petitioner is merely a third party and has failed to establish any independent right to resist or obstruct the execution. He further submits that Sudhir Kumar, who is not a legal heir of the original tenan
