- (1.)This is an appeal by the defendant/Judgment Debto from an appellate order dismissing his application under S. 47 of the Code of Civil Procedure.
(2.)Admittedly the respondent No 1 Bholanath Sen as trustee of the premises No. 171, Balaram Dey Street, appointed under a Deed of Trust dated 8.7.1941 executed by Ram Das Sen., instituted Abetment Suit No. 278 of 1954 against the appellant for eviction from a part of the said premises and obtained a decree which was passed on 15.2.1956 by the learned judge, 3rd Bench of the Court of Small Causes, Calcutta. The said decree was affirmed in Special Appeal No. 99 of 1956 by an appellate Bench of the said Court and also in Second Appeal No 1366 of 1960 by this Court. When the suit was pending in Second Appeal the beneficiary Tarak Nath Sen on this application was added a party respondent by an order made in Civil Rule No. 161/S of 1961 as it was considered desirable that the second appeal should be heard in his presence. After the ejectment decree was affirmed in Second Appeal the respondent no 2 Trarka nath Sen sought to put the decree into execution by filing an application for execution, which was registered as Execution Case No. 4 of 1964, along with an application describing its one under Order 1 Rule 10 and Order 21 Rule 16 of the Code. It was alleged in paragraph 4 of the said application that it was, inter alias, provide in the Trust deed dated 8.7. 1941 that in respect of premises No. 17 Balaram Dey Street, Calcutta the trustee was to let out the said premise and realized rent and profits thereof and pays there out in the firs place of a rate, taxes etc and then pay Rs. 5/- per month to Sm. Bidyasundari Das for her maintenance, for and during the term of her natural life and then pay all her necessary and reasonable expenses for the maintenance and education of the petitioner to hold the balance of trust hand marked over the same petitioner on his attaining majority and also to convey and transfer to petitioner the premises No. 171, Balaram Dey Street, Calcutta on his attaining majority. It was further stated in paragraph 7 of the said application that the trustee bholanath Sen having failed to render any accents or to make over sums due to the petitioner or to convey the petitioner the said premises, the petitioner filed suit No 1587 and 1959 in the Original Side of this Hon'ble Court against the trustee for a decree directing the trustee to convey the said premises and render accounts. The respondent No 2 prayed for being added as a party plaintiff in the ejectment Suit with leave to execute the decree against the appellant for recovery of possession of the suit premises. The appellant filed an application under S. 47 of the Code challenging the right off the respondent NO. 2 Tarak Nath Sen to execute the decree.
(3.)Both the courts below have proceeded on the footing that according to the terms of the Trust Deed the respondent No. 2 on attaining majority became the sole owner of the property in respect of which the trustee bholanath Sen had obtained the decree for abetment against the appellant and dismissed the application under S. 47 of the Code. The court of appeal bellows has relied on the provisions of S. 146 and Order 22 Rule 10 of the Code in holding that the respondent No. 2 has right to execute the decree.