Prasenjit Mandal, J.
1. This application under Article 227 of the Constitution of India is directed against the order dated 29.3.2007 passed by the learned Civil Judge (Senior Division), Sealdah in Miscellaneous Case No. 25 of 2006 arising out of Title Execution Case No. 3 of 2004 wherein the learned Civil Judge has rejected the petition dated 20.9.2006 under Section 151 of the Code of Civil Procedure filed by the petitioner/judgment-debtor. Being aggrieved by the said order, the petitioner/judgment-debtor has preferred the present application.
2. The fact of the case in short is that the petitioner/judgment-debtor has been residing in the suit premises being No. 14/C, Sambhu Babu Lane since his birth and on 03.12.1988 he purchased 1/9th share of Bivabati Paul by a registered deed of sale and thus he became owner of the suit premises to the extent of 1/9th share. Thereafter one partition suit was filed in the year 1989 before the learned Assistant District Judge, Alipore for partition of the suit premises by metes and bounds and that suit being No. 4 of 1989 was decreed in the prehminary form. The plaintiffs of that suit prayed for a decree of declaration that they are entitled to purchase the 1/9th share of Bivabati Paul sold to the petitioner by way of pre-emption under Section 4 of the Partition Act and the learned Assistant District Judge kept the pre-emption proceedings pending to be decided upon recording of evidence of the parties at a later stage. The plaintiffs preferred an appeal being F.A. No. 152 of 1993 before the Hon'ble High Court at Calcutta against the said judgment and decree and the Hon'ble High Court at Calcutta allowed the appeal holding, inter alia, that the petitioner herein is a stranger and the plaintiffs are entitled to pre-empt the property of the petitioner. Thereafter, the petitioner preferred an appeal being S.L.P. (C) No. 2148 of 1989 subsequently re-numbered as Civil Appeal No. 5942 of 2002 before the Hon'ble Supreme Court against the judgment and decree of the Hon'ble High Court at Calcutta and the said appeal was disposed of finally restoring the judgment of the Trial Court except that the application under Section 4 of the Partition Act shall now stand dismissed as being premature. The respondent Nos. 1 and 2 are at liberty to apply to the Trial Court if they so desire for a final decree of partition. Then, instead of applying for a final decree for partition, the plaintiff filed the fresh suit for declaration and injunction against the petitioner and that suit was registered as Title Suit No. 63 of 2001. That suit was decreed on 28.11.2003 from which the Title Execution Case No. 3 of 2004 arose. Thereafter the petitioner herein preferred an appeal being Title Appeal No. 31 of 2004. In the meantime, plaintiff/opposite party filed the Title Execution Case No. 3 of 2004 arising out of Title Suit No. 63 of 2001. The Appellate Court affirmed the judgment and decree dated 28.11.2003 with the following modification:
The appellant defendant is directed to vacate the suit room (B schedule property) within 3 (three) months from the date of disposal of this title appeal.
The respondent plaintiff is directed to deposit/pay consideration amount of the deed of purchase of the appellant defendant within a month from the date of this judgment.
The appellant defendant is directed to take necessary steps to execute a deed of conveyance in favour of respondent plaintiff on receipt of such consideration amount.
The respondent plaintiff is at liberty to put the decree in execution if the appellant defendant fails to deliver khas possession of the suit room after the stipulated period of time and she is also at liberty to execute the deed through the execution proceeding if the appellant defendant fails to execute the deed in his favour. In default to delivery of khas possession, respondent plaintiff is to get a decree of mesne profit.
3. Thereafter, the petitioner herein filed an appeal before the Hon'ble High Court at Calcutta being S.A.T. No. 3230 of 2006 and the Hon'ble High Court refused to interfere with the said order. Then the petitioner herein filed the special leave petition before the Hon'ble Supreme Court against the order of the Hon'ble High Court which was registered as Special Leave to Appeal (C) No. 16142 of 2006. Then the petitioner filed an application in the Executing Court for rejection of the execution petition under Order 21 Rule 11 of the Code of Civil Procedure which was registered as Miscellaneous Case No. 25 of 2006. The contention of the petitioner is that after modification of the judgment and decree the earlier Title Execution Case No. 3 of 2004 has become infructuous.
4. Having considered the submissions of the learned Advocates of both the sides and on perusal of the record, I find that the facts as narrated above are admitted. The petitioner/judgment-debtor has sought for setting aside the impugned order dated 29.3.2007 on the grounds already stated. The plaintiff/opposite party filed the Title Suit No. 63 of 2001 which was decreed on contest with costs and the plaintiff/opposite party got a decree of eviction against the petitioner/judgment-debtor. Thereafter the plaintiff/opposite party filed the Title Execution No. 3 of 2004. In the meantime, the appeal preferred by the petitioner/judgment-debtor has been disposed of and the learned Additional District Judge, First Fast Track Court, affirmed the judgment and decree dated 28.11.2003 passed by the learned Civil Judge (Senior Division), Sealdah with the modification as indicated earlier. When the decree was modified by the Appellate Court, I find from the application for execution of the decree at page 59 (Annexure P-4) that the plaintiff/decree holder has incorporated the result of the appeal and he has moulded the relief sought for according to the judgment of the lower Court as modified by the Appellate Court. The original decree passed in Title Suit No. 63 of 2001 has not been completely set aside by the Appellate Court but modified as indicated earlier. Therefore, I hold that the plaintiff/opposite party is quite within his right to execute the decree passed by the Appellate Court. The single application for execution of the decree is sufficient for that purpose. In the instant case, one execution application numbered as Title Execution Case No. 3 of 2004 has been filed by the opposite party/decree holder and this application has been amended to include the modification as has been done by the Appellate Court. The petitioner/judgment-debtor has raised the question of maintainability of the execution proceedings by the application under Section 151 of the Code of Civil Procedure. The amendment of the application for execution of the decree could be made to include subsequent events. There is no evidence that the petitioner has taken any step to set aside the order dated 01.07.2006 of the inclusion of the modification in the application for execution. Therefore, I hold that there is no illegality, impropriety or irregularity in passing the impugned order thereby rejecting the application under Section 151 of the Code of Civil Procedure. The learned Civil Judge (Senior Division) has rightly directed the petitioner/judgment-debtor to receive the draft deed from the record and to file an objection, if any, in respect of the draft deed filed by the decree holder in compliance with Order 21 Rule 34 of the Code of Civil Procedure by the next date of 05.04.2007. Such orders have been passed by the learned Civil Judge (Senior Division), Sealdah in executing the decree of the original Court as modified by the Appellate Court, i.e. virtually the decree of the Appellate Court.
5. The learned Advocate for the petitioner/judgment-debtor has contended before me that the Appellate Court passed the judgment of the Title Appeal No. 31 of 2004 on 31.03.2005 and the plaintiff/opposite party did not file any application for execution of the judgment and decree dated 31.03.2005 but he has filed the application for execution of the decree on the basis of the judgment and decree dated 28.11.2003 passed by the Court of original jurisdiction and that is why the title execution case number appearing as No. 3 of 2004 is figuring as of the year 2004. So, such an application for execution of the decree having the number of 2004 is not maintainable at all and so the application for execution of the decree should be dismissed. With due respect to the learned Advocate for the petitioner, I hold that such submission cannot be accepted. Just as in the suit, the application for execution can well be amended to include substitution of parties or subsequent events. The execution application, I hold, can well proceed with the original number of the case. Such a type of procedure is not opposed by any provision of the Code of Civil Procedure.
6. The learned Advocate for the petitioner has next contended that after disposal of the appeal, the decree to be executed is the decree of the Appellate Court and not of the Trial Court and he has referred to the ruling of AIR 1974 SC 1380. In the instant case, the decree of the original Court has not been set aside altogether by the Appellate Court but affirmed with a certain modification. When the original decree was modified by the Appellate Court, the petitioner amended his application for execution of the decree praying for appropriate reliefs vide order dated 01.07.2006 (as appearing from the application of the execution of the decree). The effect is that after disposal of the appeal, the opposite party/decree holder is virtually proceeding with the decree of the Appellate Court (as observed earlier). Therefore, I hold that the single application that is Title Execution Case No. 3 of 2004 is suffice for execution of the decree of the Appellate Court. The steps taken by the decree holder/opposite party, I hold, are not actually contrary to the ruling of : [1975]1SCR394 .
7. The learned Advocate for the petitioner has referred to the case of Rekha Mukherjec and Ors. v. Asis Kumar Das and Ors. reported in : AIR2005SC1944 , to show that when the original decree is modified or reversed by way of review but the effect would be to vacate the original decree and the decree passed subsequently on review is a new decree superseding the original decree. With due respect to the learned Advocate for the petitioner, I hold that this is not the exact situation in the instant case. So this ruling, I hold, is not applicable here.
8. In view of my above observations, I am of the view that there is nothing to interfere with the impugned order of the learned Civil Judge (Senior Division), Sealdah. The petitioner/judgment-debtor contested all the proceedings all along. He was not taken surprise of any matter. The application for execution of the decree has been rightly amended pursuant to the judgment of the Appellate Court. Therefore, after amendment of the application for execution of the decree by the order dated 01.07.2006 the decree which is executable at present is nothing but the decree of the Appellate Court. So I do not find any merit in the application under Article 227 of the Constitution of India.
9. Therefore, the application under Article 227 of the Constitution of India is dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.