Calcutta High Court
Sri Sri Iswar Gajalakshmi Mata ... vs Marshall (India) Sons & Company Limited on 27 March, 2025
od 3
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
EC/309/2019
IA NO: GA/1/2021,
GA/2/2021,
GA/9/2022,
GA/10/2022,
GA/11/2022,
GA/13/2024,
GA/14/2024,
GA/15/2024
SRI SRI ISWAR GAJALAKSHMI MATA THAKURANI AND ORS.
VS
MARSHALL (INDIA) SONS & COMPANY LIMITED
BEFORE:
HON'BLE JUSTICE PARTHA SARATHI SEN
Date : March 27, 2025.
Appearance:-
Mr. Debnath Ghosh, Sr. Adv.
Mr. Sarosij Dasgupta, Adv.
Mr. Biswaroop Mukherjee, Adv.
Mrs. Smita Mukherjee, Adv.
Ms. Saheli Bose, Adv.
For the petitioners.
Mr. Abhrajit Mitra, Sr. Adv.
Ms. Radhika Singh, Adv.
Mr. Sourojit Dasgupta, Adv.
On behalf of plaintiff/decree-holder.
Ms. Iram Hassan, Adv.
Mr. Sanket Sarawgi, Adv.
Mr. Himanshu Bhawsinghka, Adv.
For the respondent no.1.
Mr. Sushil Kumar Mishra, Adv.
Mr. Shailendra Kumar Mishra, Adv.
Mrs. Sabnam Laskar, Adv.
For the respondent no.2.
Mr. Abhijit Ray, Adv.
Mr. Santnu Nandy, Adv.
For the Intervenor.
Mr. Satyaki Mukherjee, Adv.
Mr. Lalit Baid, Adv.
Mr. Ratul Das, Adv.
Mr. Tamoghna Saha, Adv.
Mr. Akash Munshi, Adv.
Ms. Sanjana Shaw, Adv.
For the Added Party.
Mr. Debraj Sahu, Adv.
For the Receiver.
GA/9/2022
1. By filing the instant application under the provisions of order
21 Rule 97 of the Code of Civil Procedure the applicants have
prayed for determination of their independent right, title and
interest over a portion of the decretal property.
2. At the time of hearing attention of this Court is drawn by the
Learned Advocate for the applicant to various paragraphs of
GA 9 of 2022.
3. On perusal of paragraph 4 of GA 9 of 2022 it reveals that it is
the case of the present applicants that they came into
possession of the shop room 801 and 802/office/garages of
the decretal property by the judgment debtor no. 2 who had
assigned and/or sublet the said two shop rooms to the present
applicants. It thus appears to this Court that it is the case of
the applicants in GA 9 of 2022 that they are mere sub-tenants
in respect of the said two shop rooms/office/garages. It is thus
crystal clear that they have got no independent right, title and
interest over any portion of the decretal property. It further
appears to this Court that whatever right, title and interest the
present applicants have obtained those have been obtained
through the judgment debtor No. 2 who had already suffered a
decree by the Trial Court which has been affirmed by the
appellate Court and which has been put into execution before
this Court.
4. This Court considers that the provisions of Order 21, Rule 101
envisages determination of independent right, title and interest
of a third party. It appears to this Court that the present
applicants have failed to establish their independent right, title
and interest over any portion of the decretal property as has
been discussed hereinabove. It is their specific case that they
had come into possession of two shop rooms through the
judgment debtor No. 2. Since the judgment debtor No. 2's
right, title and interest over the decretal property has been
extinguished, this Court has got no hesitation to hold that the
present applicants being the unauthorized sub tenants of the
judgment debtor No.2 cannot have a better title than their
superior-in interest i.e. the judgment debtor No. 2 who by
virtue of the decree of the trial Court lost all his possessory
right and interest over the decretal property.
5. In view of the discussions made hereinabove, the instant
application being GA 9 of 2022 is dismissed with cost of Rs.3
lakhs.
6. It is directed that such cost is to be deposited with the office of
the State Legal Services Authority, 2 and 3, K.S.Roy Road,
First Floor, Kolkata 700 001.
7. The Member Secretary, SLSA, West Bengal is directed to credit
the entire cost amount, if deposited to the credit of victim
compensation fund.
GA/10/2022
8. At the time of hearing learned Advocate appearing on behalf of
the petitioners in GA/10/2022 prays for an accommodation.
Such prayer is opposed on behalf of the decree-holder.
Learned Advocate for the judgment debtor submits further
that accommodation may be granted subject to payment of
cost also.
9. On a careful consideration of the entire materials as placed
before this Court it reveals that on account of pendency of this
application as well as of similar types of applications the
original execution case cannot be proceeded with.
10. In view of such while allowing the prayer for an adjournment
this Court imposes a cost of Rs.2 lakhs upon the applicants
which is to be deposited within three working days from today
with the office of the State Legal Services Authority, West
Bengal, First Floor, 2 & 3, K.S. Roy Road, Kolkata 700 001.
11. It is made clear that in the event the cost is not deposited
within the stipulated time as fixed by this Court the instant
application will be dismissed on the adjourned date for non
compliance of the Court's order.
GA/11/2022
12. At the time of hearing learned Advocate appearing on behalf of
the petitioners in GA/10/2022 prays for an accommodation.
Such prayer is opposed on behalf of the decree-holder.
13. On a careful consideration of the entire materials as placed
before this Court it reveals that on account of pendency of this
application as well as similar types of applications the original
execution case cannot be proceeded with. In view of such
while allowing the prayer for an adjournment this Court
imposes a cost of Rs.3 lakhs upon the applicants which is to
be deposited within three working days from today with the
office of the State Legal Services Authority, West Bengal, First
Floor, 2 & 3, K.S. Roy Road, Kolkata 700 001.
14. The Member Secretary, SLSA, West Bengal is directed to
credit the entire cost amount, if deposited to the credit of
victim compensation fund.
15. It is made clear that in the event the cost is not deposited
within the stipulated time is fixed by this Court the instant
application will be dismissed on the adjourned date for non
compliance of the Court's order.
GA/13/2024
16. By filing the instant application under the provisions of order
21 Rule 97 of the Code of Civil Procedure the applicants have
prayed for determination of their independent right, title and
interest over a portion of the decretal property.
17. At the time of hearing attention of this Court is drawn to
various paragraphs of GA 9 of 2022.
18. On perusal of the contents of GA 9 of 2022 it reveals that it is
the case of the present applicants that they came into
possession of schedule mentioned property of GA/9/2022
being part and parcel of the decretal premises by the judgment
debtor no. 2 who had assigned and/or sublet the said
schedule mentioned property to the present applicants. It thus
appears to this Court that it is the case of the applicants in GA
9 of 2022 that they are mere sub-tenants in respect of the said
two schedule mentioned properties. It is thus crystal clear that
they have got no independent right, title and interest over any
portion of the decretal property. It further appears to this
Court that whatever right, title and interest the present
applicants have obtained those have been obtained through
the judgment debtor No.2 who had already suffered a decree
by the Trial Court which has been affirmed by the appellate
Court and which has been put into execution before this
Court.
19. This Court considers that the provisions of Order 21, Rule
101 envisage determination of independent right, title and
interest of a third party also. It appears to this Court that the
present applicants have failed to establish their independent
right, title and interest over any portion of the decretal
property as has been discussed hereinabove. It is their specific
case that they had come into possession of schedule
mentioned property through the judgment debtor No. 2. Since
the judgment debtor No.2's right, title and interest over the
decretal property has been extinguished, this Court has got no
hesitation to hold that the present applicants being the
unauthorized sub tenants of the judgment debtor No.2 cannot
have a better title over their superior-in-interest i.e. the
judgment debtor No. 2 who by virtue of the decree of the trial
Court lost all his possessory right and interest over the
property.
20. In view of the discussions made hereinabove, the instant
application being GA 9 of 2022 is dismissed with cost of Rs.3
lakhs.
21. It is directed that such cost is to be deposited with the office
of the State Legal Services Authority, 2 and 3, K.S.Roy Road,
First Floor, Kolkata 700 001.
22. The Member Secretary, SLSA, West Bengal is directed to
credit the entire cost amount, if deposited to the credit of
victim compensation fund.
GA/14/2024
23. At the very outset, Mr. Ghosh, learned Senior Counsel
appearing on behalf of the applicants in IA No. GA/14/2024,
submits that the instant application may be treated as an
application under Order 21 Rules 97 to 100 of the Code of
Civil Procedure. Attention of the Court is drawn to the
schedules of the instant application.
24. Mr. Ghosh submits that the instant application has been filed
by the present applicants claiming their independent right,
title and interest over the schedule mentioned properties and,
therefore, an adjudication is required under the provisions of
Order 21 Rule 101 of the Code of Civil Procedure.
25. In course of his argument Mr. Ghosh at the very outset took
me to page nos. 30 to 43 of the instant application being a
typed copy of the original deed of lease dated 20.04.1964 as
has been executed by and between Murari Charu Law and
Marshall Sons & Company, the judgment debtor No. 1.
26. It is submitted by Mr. Ghosh that from page 38 of the said
copy of the original deed of lease, it would reveal that the
original lessor permitted the original lessee to assign by way of
mortgage/sublet the leasehold property and/or any portion
thereof without consent of the lessor.
27. At this juncture Mr. Ghosh again took me to pages 45 to 66 of
the instant application being a copy of registered sub-lease
dated 20.01.1964 as executed by and between the original
lessee i.e. the judgment debtor No. 1 herein and one Mahabir
Properties Private Limited.
28. It is submitted by Mr. Ghosh that with the execution of the
said deed of sub-lease a godown of premises No. 33/1, Netaji
Subhas Road was sublet in favour of the sub-lessee Mahabir
Properties Private Limited.
29. At this juncture Mr. Ghosh again draws attention of this
Court to page 124 to 262 of the instant application being
copies of different registered sub-leases as have been executed
by the said Mahabir Properties Private Limited in favour of the
present applicants.
30. It is contended by Mr. Ghosh that since the original landlord
and lessor Murari Charu Law had permitted the original lessee
i.e. Marshall Sons & Company, the judgment debtor herein to
induct sub-lessee in respect of portions of the leased out
property, as a natural corollary it may be safely presumed that
the sub-lessee of the originals lessee i.e. Mahabir Properties
Private Limited had every powers and authorities to again
sublet different portion of the decretal property in question to
his sub-tenant who are applicants before this Court. It is,
thus, contended by Mr. Ghosh that since the present
applicants have been inducted in different portions of the
decretal property by their superior landlord Mahabir
Properties Private Limited and since the present applicants
have not been made parties in the original suit for eviction and
also since the decree has been obtained against the judgment
debtors herein by exercising fraud, the independent right, title
and interest of the present applicants are required to be
adjudicated.
31. It is further contended by Mr. Ghosh that by no stretch of
imagination it can be said that the present applicants are
unlawful occupiers of any portions of the decretal property
since they have been inducted by executing a registered
instrument.
32. In course of his submission Mr. Ghosh places reliance upon
the judgment reported in (2022) 1 Cal LT 359 (Jyoti Biswas
and Others-Versus-Raj Kumar Ghosh and Others) and
another judgment reported in (2007) 1 CHN 80: (2007) 2 ICC
58 (Cal) (Venkateshwar Fiscal Services Private Limited -
Versus- Bagla & Co. and Others).
33. Per contra, Mr. Mitra, Learned Senior Advocate for the decree
holder submits that the present applicants have miserably
failed to establish their own independent right, title and
interest in any portion of the decretal property.
34. In course of his submission Mr. Mitra, learned Senior Counsel
appearing on behalf of the decree-holder, further submits that
in view of the judgment as passed against the judgment debtor
no.2, Mahabir Properties Private Limited, the right, title and
interest of the present applicants, if there be any, being the
alleged sub-lessee of the said judgment debtor no.2 have also
extinguished on account of extinction of interest of the
judgment debtor no.2.
35. On careful consideration of the entire materials as placed
before this Court and after hearing the learned Advocates for
contending parties, it appears to this Court that for effective
adjudication of the instant lease the provision of Order 21
Rule 101 of the Code of Civil Procedure is required to be
looked into and the same is quoted herein below:-
"101. Question to be determined.- All questions (including
questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application
under Rule 97 or Rule 99 or their representatives, and relevant
to the adjudication of the application, shall be determined by
the Court dealing with the application and not by a separate
suit and for this purpose, the Court shall, notwithstanding
anything to the contrary contained in any other law for the time
being in force, be deemed to have jurisdiction to decide such
questions".
36. On perusal of the aforementioned legislative provision, it
appears to this Court that it is the intention of the legislature
that in an execution proceedings all questions relating to right,
title and interest in the decretal property arising between the
parties to such proceedings are to be decided by the decretal
Court and not by a separate suit and Rule 103 of Order 21 of
CPC made it clear that such adjudication shall have to be
treated as a decree.
37. Keeping in mind the aforementioned legislative provision if I
look to the factual aspects of the case, it appears to this Court
that by an indenture of lease dated 20.04.1964 the decretal
property was let out to the judgment debtor No. 1 of the
instant execution case. Admittedly, the lessor of the said deed
of lease dated 20.04.1964 permitted the lessee, the judgment
debtor No. 1 herein to assign by way of mortgage or by
otherwise and/or sublet the whole or any portion of the leased
out property. Materials have been placed before this Court
that the lessee of the said property who is the judgment debtor
No. 1 in the instant execution case has exercised his such
power of subletting and thus inducted one Mahabir Properties
Private Limited as a sub-tenant.
38. From pages 124 to 262 of the instant application, it appears
to this Court that the said sub-tenant i.e. Mahabir Properties
Private Limited (judgment debtor no. 2 herein) executed
several registered deeds of sub-tenancy in favour of present
petitioners.
39. This Court had meticulously gone through the copy of the
original deed of lease dated 20.04.1964. This Court had
noticed that admittedly the judgment debtor no. 1 being the
lessee has a right to induct sub-tenant as rightly pointed out
by Mr. Ghosh.
40. Mr. Ghosh, however, in course of his submission failed to
point out any clause or clauses of the said deed of lease dated
20.04.1964 whereby the original lessor permitted the sub-
tenant of the original lessee to induct further sub-tenants in
the demised property.
41. It may be that the petitioners came into possession as sub-
tenants under judgment debtor No. 2 (who himself was a sub-
tenant under the original lessee i.e. judgment debtor No. 1) in
different portions of the decretal property by virtue of different
registered deed of lease/sub-lease, but this Court fails to find
any material that the applicants' superior landlord i.e.
Mahabir Properties Private Limited (the judgment debtor No. 2
herein) had got any authority and/or right to induct the
present applicants as sub-tenants.
42. This Court thus holds that since the judgment debtor No. 2
i.e., Mahabir Properties Private Limited has got no right to
induct the present applicants as sub-tenant, the alleged right,
title and interest of the present applicants over any portion of
the decretal property cannot be established. This Court, thus,
finds that the present applicants have miserably failed to
establish their own independent right, title and interest over
any portion of the decretal property even though they have
been inducted on the strength of some registered instruments.
It is settled principles of law that a title cannot pass unless the
transferor possess a marketable title to pass in favour of the
transferee.
43. As rightly pointed out by Mr. Mitra, learned Senior Counsel
appearing on behalf of the decree-holder/opposite party herein
that the present applicants' superior authority/landlord was
Mahabir Properties Limited who is the judgment debtor no.2 in
the original suit.
44. In course of his argument Mr. Ghosh contended that the
original decree which was put into the execution is the
outcome of fraud. No materials could be placed before the
Court to substantiate that fraud was exercised before the Trial
Court for obtaining a collusive decree.
45. The reported decisions as cited by Mr. Ghosh are
distinguishable from the facts and circumstances of the
present case.
46. This Court, thus, finds that GA/14/2024 is devoid of merit.
This Court further holds that GA No. 14 of 2024 has been filed
with the sole purpose to deprive the decree-holders from the
fruits of the decree. As a result, the instant application fails
and is, thus, dismissed.
47. Considering the conduct of the present six applicants this
Court imposes a cost of Rs. 3,00,000/- (three lakhs) each
upon all the six applicants out of which 50% is to be paid to
the decree-holder and the remaining 50% is to be deposited
with the office of the State Legal Services Authority, 2 & 3
Kiran Sankar Roy Road, 1st Floor, Kolkata 700 001.
48. The Members Secretary, State Legal Services Authority is
hereby directed to credit the said costs to the victim
compensation fund.
49. It is further directed that the present applicants are to deposit
costs within a fortnight from date.
50. The Department is directed to forward a copy of this order to
the Members Secretary, State Legal Services Authority, for
informaion and compliance with the aforementioned
observations.
51. IA No. GA 14 of 2024 is hereby disposed of.
(PARTHA SARATHI SEN, J.)
52. After passing of the above order, Mr. Ghosh requests this
Court to pass a limited order of stay.
53. Prayer for stay is considered and refused.
(PARTHA SARATHI SEN, J.)
54. Let the execution case be listed on 24th April, 2025 along with
IA No. GA/1/2021, GA/2/2021, GA/10/2022, GA/11/2022
and GA/15/2024.
(PARTHA SARATHI SEN, J.)
S.das/gh/snn
