KSHITISH NANDI Vs. MANADA DHAR

JUDGEMENT

(1.) IN this revision order dated 28.7.2010 passed by Additional District Judge, North Tripura, Dharmanagar in Civil Misc. Appeal No. 2 of 2010 has been assailed, whereby and whereunder the order dated 31.5.2010 passed in Misc. Case No. 15 of 2010 by the Civil Judge, Jr. Division, North Tripura, Dharmanagar has been upheld. By order dated 31.5.2010 Civil Judge, Jr. Division, Dharmanagar, North Tripura refused to grant temporary injunction in favour of the petitioner herein preferred under Order 39 Rule 1 and 2 of the Civil Procedure Code (for short CPC).

(2.) THE factual matrix in a short campus can be stated as under: THE predecessors-in-interest of the respondents herein as plaintiffs instituted Title Suit No. 10 of 1979 in the Court of Sub-Judge, Dharmanagar to obtain a decree for recovery of possession of the suit land described in the plaint. THE trial Court after due trial decreed the suit in favour of the predecessors-in-interest of the respondents. Being aggrieved, the judgment debtor preferred an appeal and on dismissal of the said appeal, the judgment debtor approached the High Court by filing a Second Appeal which too resulted dismissal. Since no SLP had been filed before the Apex Court the judgment and decree passed by the High Court attained finality. THE respondents herein being the legal heirs of then plaintiffs filed an execution case for execution of the decree which attained finality. THE said execution case was registered as Ex.(T) No. 18 of 2001. During the pendency of the execution case as indicated above, on 17.9.2007, the petitioner herein purchased a portion of the decreetal land measuring .003 acres from Sri Ajit Rn. Dhar @ Hira Dhar, respondent No. 9 herein by registered sale deed at a consideration of Rs. 90,000/- and on such purchase the petitioner herein stepped into the shoes of the decree holder in respect of land measuring .003 acres. THE petitioner having stepped into the shoes of the decree holder filed an application under Order 21 Rule 16 CPC on 5.5.2008 which was dismissed on 11.5.2010 by the executing Court on the ground that there was no scope for re-examination of the issue raised in the application filed under Order 21 Rule 16.

(3.) MR. K. N. Bhattacharjee, learned Sr. counsel at the very threshold of his argument submitted that the petitioner herein being deprived of his share which had been purchased from the respondent No. 9, one of the decree holders, has filed the partition suit being No. T.S. (P) 5 of 2010 for partition of the suit land for enjoyment of the same by him. It was also argued that by virtue of such purchase the petitioner stepped into the shoes of the decree holders and, therefore, he had the right to take resort to the provision of Order 21 Rule 16 CPC which however, had been rejected by the trial Court which compelled the petitioner to approach the Court by way of revision petition being No. CRP 28 of 2008 which had been disposed of by judgment and order dated 10.8.2010 wherein the executing Court was directed to dispose of the application filed by the petitioner under Order 21 Rule 16 and until disposal directed stayal of the execution proceeding. MR. K. N. Bhattacharjee in support of this revision petition took assistance of the ratio laid down in the Jagdish Dutt's case (supra) wherein it has been held where a decree in favour of a joint family is passed and during execution of decree if a transfer is a made by a coparcener in respect of his interest in the subject matter of the decree in favour of the judgment debtor, the decree is extinguished to the extent of the transferor's interest. Decree can be executed only in respect of the remaining part of the subject matter. In paragraph-7 of the judgment, the Apex Court held as under: