Calcutta High Court (Appellete Side)
Sri Tapan Das & Ors vs Malay Das & Ors on 17 July, 2023
17.07.2023.
Supple Item No. 1.
Court No. 13
ap
S.M.A.T. No. 7 of 2022
With
I.A. No. CAN 1 of 2022
Sri Tapan Das & Ors.
Versus
Malay Das & Ors.
Mr. Rajdeep Bhattacharya.
...For the Appellants.
Mr. Sudip Das.
...For the Respondents.
1. The intra court appeal is directed against a
judgment and order dated 24th August, 2022 passed in
Title Appeal No. 10 of 2020 by the learned Civil Judge
(Senior Division) Chandernagore, Hooghly.
2. The brief facts relevant to the case are that Title
Suit No. 145 of 1984 was decreed by the learned Civil
Judge (Junior Division) 1st Court at Chandernagore,
Hooghly, against which Title Appeal No. 338 of 1987
was carried and dismissed.
3. Thereafter the applicant's application under Section
47 of the Code of Civil Procedure being Misc. Case No.
5 of 1993 was also dismissed. The order of dismissal of
the application under Section 47 of the Code of Civil
Procedure, 1908 was confirmed in a revisional
application being C.O. No. 708 of 2004 by this Court.
The right, title and interest of the respondents in
respect of plot no.457 was confirmed.
4. The predecessor-in-interest of the appellants, their
father was a party to the Title Suit and died during its
pendency. The Title Appeal was carried allegedly in the
name of the deceased father and other persons in
which failed.
5. When the decree was put into execution by the
respondents/opposite parties in Title Execution Case
No. 336 of 2014, the appellant herein filed Misc.
Judicial Case No. 21 of 2017 under Order XXI, Rules
99-100 of the Code of Civil Procedure, 1908, inter alia,
contending that the decree is not executable against
him. The Court below has dismissed the appellant's
application by the impugned order dated 22 nd August
2022, and the execution has been proceeded with.
6. Mr. Rajdeep Bhattacharyya, Learned Counsel
appearing for the appellants would argue before this
Court that the decree passed by the First Court and
dismissal thereof by the Lower Appellate Court in Title
Appeal are erroneous since the appellants' father died
during the pendency of the suit and there was no
substitution. Consequently, the appeal was decided
against the petitioners' father, who was a dead person.
Such decree is therefore not binding or enforceable or
executable against him.
7. As already indicated hereinabove, the decree and
the judgment in Title Appeal have been confirmed by
this Court in its revisional jurisdiction in C.O. No. 708
of 2004 already referred to hereinabove. The decree is
against the whole property, being plot no. 457. The
other occupants, relatives and associates of the
appellants contested the said proceedings all the way
to this Court.
8. The appellants and/or their predecessor being a
party to the suit and the appeal, cannot by any stretch
of imagination invoke the provisions of Order XXI,
Rules 99-100 of the Code of Civil Procedure, 1908 and
indirectly and surreptitiously seek a de novo trial
and/or reopening of the decree of the First Court as
already confirmed by the Lower Appellate Court and
this Court in its revisional jurisdiction. The
application filed by the appellants under Order XXI,
Rules 99-100 of the Code of Civil Procedure, 1908 was
therefore not maintainable.
9. This Court is in concurrence with the impugned
judgment, that the petitioners, under the garb of being
alleged third party on whom the decree may not be
binding, were in fact seeking a de novo trial of matters
that have been decided and confirmed all the way
before this Court.
10. For the reasons discussed hereinabove, the
impugned judgment and order dated 24th August,
2022 passed by the learned Civil Judge (Senior
Division0 Chandernagore, Hooghly does not call for
any interference by this Court. Accordingly, S.M.A.T.
No. 7 of 2022 shall stand dismissed.
11. Interim order, if any, shall stand vacated.
12. However, in the facts and circumstances of the
case, there will be no order as to costs.
13. In view of dismissal of the appeal itself, the
connected applications being CAN 1 of 2022 shall
stand dismissed.
14. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
