Girish Kumar Khaitan and ors. Vs. Suprova Basu and ors. - Court Judgment

Excerpt:
the court : there will be an order in terms of prayer (a) of the application. we have heard the learned advocates appearing for the parties at length. this appeal is directed against an order passed by the hon'ble first court refusing the interim order at the time of moving the application. the hon'ble first court at that point of time directed to file affidavits so that the matter can be decided. we do not intend to interfere at this stage in respect of the said order so passed by the trial court. mr. j.k. mitra, learned senior counsel appearing in support of this appeal contended before us and fairly submitted that the decree which had already been passed in this matter had been affirmed by the division bench of this court in favour of respondent nos.1, 2 and 3 and his clients agony is only with regard to the execution of the said decree, if made by the said respondents, which wold affect the rights of the appellants herein. mr. mitra has also pointed that his client has a right, title and interest and is a bona fide purchaser of the property in question including the common right in respect of the terrace at premises no. 46c, chowringhee road, kolkata. mr. s.n. mitra, learned senior counsel, on the other hand, appearing on behalf of the respondent nos.1, 2 and 3 pointed out that a decree has already been passed in favour of the said respondents and affirmed by the division bench and they have a right to execute the decree in accordance with the provisions of the code of civil procedure. it further appears to us that if any decree-holder have a right to execute the decree and if any party, who is not a party in the suit, can come before the court and agitate his grievance in respect of the right, title and interest in respect of the same property, which they are claiming in the execution application or even independently in terms of order xxi rule 97 and rule 104 of the code of civil procedure. therefore, at this stage, in our opinion, no order is necessary to be passed by us and the right of the appellants can be adjudicated upon by the executing court at the time of dealing with the same or before the trial court, if otherwise allowed under the provisions of law in the suit which has been filed by the present appellants. such being the position, we find that it would be proper for us not to interfere with the order so passed by the trial court. at this stage, we are only expressing our opinion with regard to the case as tried to be made out before us by the appellants. with the above observations, we only dispose of the appeal without passing any order in this application. by consent of the parties, the appeal is also treated as on the days list and is disposed of. undertakings are discharged. all parties concerned are to act on a signed photocopy of this order on the usual undertakings. urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
The Court : There will be an order in terms of prayer (a) of the application. We have heard the learned Advocates appearing for the parties at length. This appeal is directed against an order passed by the Hon'ble First Court refusing the interim order at the time of moving the application.

The Hon'ble First Court at that point of time directed to file affidavits so that the matter can be decided. We do not intend to interfere at this stage in respect of the said order so passed by the Trial Court. Mr. J.K. Mitra, learned senior counsel appearing in support of this appeal contended before us and fairly submitted that the decree which had already been passed in this matter had been affirmed by the Division Bench of this Court in favour of respondent Nos.1, 2 and 3 and his clients agony is only with regard to the execution of the said decree, if made by the said respondents, which wold affect the rights of the appellants herein. Mr. Mitra has also pointed that his client has a right, title and interest and is a bona fide purchaser of the property in question including the common right in respect of the terrace at premises No. 46C, Chowringhee Road, Kolkata. Mr. S.N. Mitra, learned senior counsel, on the other hand, appearing on behalf of the respondent Nos.1, 2 and 3 pointed out that a decree has already been passed in favour of the said respondents and affirmed by the Division Bench and they have a right to execute the decree in accordance with the provisions of the Code of Civil Procedure.

It further appears to us that if any decree-holder have a right to execute the decree and if any party, who is not a party in the suit, can come before the Court and agitate his grievance in respect of the right, title and interest in respect of the same property, which they are claiming in the execution application or even independently in terms of Order XXI Rule 97 and Rule 104 of the Code of Civil Procedure.

Therefore, at this stage, in our opinion, no order is necessary to be passed by us and the right of the appellants can be adjudicated upon by the Executing Court at the time of dealing with the same or before the Trial Court, if otherwise allowed under the provisions of law in the suit which has been filed by the present appellants.

Such being the position, we find that it would be proper for us not to interfere with the order so passed by the Trial Court. At this stage, we are only expressing our opinion with regard to the case as tried to be made out before us by the appellants. With the above observations, we only dispose of the appeal without passing any order in this application. By consent of the parties, the appeal is also treated as on the days list and is disposed of. Undertakings are discharged.

All parties concerned are to act on a signed photocopy of this order on the usual undertakings.

Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.