Sati Rani Sen Vs. M/S. Indian Standard Casting Company & ANR  INSC
297 (17 March 1997)
Ramaswamy, G.T. Nanavati
R D E R
Granted. We Have Heard Learned Counsel For The Parties.
appeal by special leave arises from the order of the learned single judge of
the high court of Calcutta made on October 14 1996 in c.o no. 2514/95. The
present position appears to be that the premises no.31, Raja Santosh road Alipore
Calcutta is the subject matter of the suit no. 86/90 on the file of the 4th
additional district judge Alipore.
they had claimed that they were duty inducted by 2nd respondent m/s. Metal box
india ltd. As a tenant and therefore they have the leasehold right in the premisses
similarly the appellant filed suit no 435/90 on the file of the learned iind
munsif, alipore therein the appellant claimed that m/s metal box India ltd. Is
the tenant and the first respondent has no manner of interest or tenancy right
therein as against the appellant. Admittedly both the suits are pending in suit
no. 86/90 the trail court passed an order on July 14, 1990 directing that
status quo be maintained and also given ads interim injunction restraining the
appellant from disturbing the possession of the first respondent. Admittedly
the said order is still in operation while the proceedings were pending the
appellant filed another suit bearing no.66/93 on the file of the learned 2nd
munsif, judge wherein the appellant impleaded only m/s metal box India ltd. As
the sole defendant and had an ex parte decree in execution thereof, the
possession was taken on may 23,1995. The first respondent viz., Indian standard
casting co. Filled an application under order xxi rule 90 read with section 151
cpc in suit no.66/93 stating that he is having lawful possession and cannot be
unlawfully dispossessed in execution of the decree dated January 4,1995. Though
the first respondent filed an application under order xxxix rules 1 and 2 cpc
but in substance it is one under order xliv, cpc for restitution of the
possession by virtue of the order of the status quo granted on July 14, 1990.
The said application was ordered which is the subject matter in this appeal.
shri Raju Ramchandra, learned senior counsel appearing for the appellant
contends that the appellant in execution of the decreed dated January 1 1995 in
suit no.66/93 came to have lawful possession of the property in his right as a
decree holder and owner of the property the civil court was not right in
the argument is palatable and seemingly acceptable but in view of the fact
situation the contention stands no merit. Obviously, so long as the status quo
order and ad interim injunction maintaining the possessing of m/s. Indian
standard casting company continue to subsits, the execution of the decree in
suit no.66/93 though became final without impleading the said respondent is to
over reach the order of injunction and is an abuse of the court it would be
obvious that the appellant being the defendant in suit no.66/90 and having
suffered the order of status quo as also adinterim injunction which is still
subsisting without that order being vacated or suit being disposed of the
appellant could not have the decree in suit no.66/93 executed without taking
steps to have respondent no.1 indian standard casting co.
as a party-defendant to the suit. Since Indian standard casting co., had
already obtained the order which is operating it could not be dispossessed by
execution of an ex parte decree to which it was not a party. Obviously the
appellant wanted to over reach the order passed in suit no. 86/90 normally we
would have directed the appellant to restitute possession to the respondent.
The status of the respondent itself is to be decided in its suit unfortunately
the respondent stood dispossessed on may 23,1995. Under these circumstances the
question is what would be the proper course in view of the above factual
situation we think that the appellant should be appointed as court receiver
under order xl rule 1 caps and would obviously be answerable to the court. In
the event of any decision against the appellant in the above suits it would be
obvious that the appellant shall surrender possession to m/s. Indian standards
casting co. Otherwise the possession would remain with the appellant the owner
of the property .
view of the fact that suit no.86/90 and suit no.435/90 and suit no.435/90 are
pending in different courts and also the proceedings under order xxi rule 90 in
suit no.66/93 we are of the view that all the three proceedings should be
transferred to one court. Accordingly, we direct that suit no. 435/90 and the
application filed under order xxi rule 90 cpc should be transferred to the 4th
additional judge Alipore to be tried along with suit no.86/90. We are informed
that the appellant has not filed written statement so far. Thirty days' time
from today is granted to the appellant to file the written statement. If the
written statement is not filed the appellant would forfeit his right to file
the written statement . 4th additional judge is directed to dispose of both the
suits as well as application under xxi rule 90 cps as expeditiously as possible
within a period of six months from the date of the receipt of this order.
appeals are accordingly disposed of. No costs.