- (1.) The instant appeal has been preferred against the judgement and order passed in Misc. Appeal No. 62 of 1998 dated 23.07.2004 by Sri K.M. Guchayait, Learned Additional District and Sessions Judge, First Court (1), Kalyani, Nadia affirming the order dated 24.07.1998 passed by Sri D. Halder, Learned Civil Judge (Junior Division), Kalyani, Nadia in Misc. Case No. 78 of 1995 arising out of Title Execution Case No. 11of 1995 refusing to grant police protection. The thumbnails sketch of the plaintiff's case is as follows : - 1. The contention of the Misc. Case petition filed under Order 22A rule 97 C.P.C. read with 208 of C.R.O., is that plaintiff/decree holder Smt. Anupama Das filed a suit for eviction against Nirmal Kumar Tamli. That suit being No. T.S. 82 of 1986 has been decreed in favour of the plaintiff. As the defendant/judgement debtor refused to deliver the peaceful possession to plaintiff so the plaintiff filed an application under Section 21 Rule 35 to execute the decree. Said writ of possession was forcefully and illegally resisted by the O.P.s, his men and agent on 30.07.1995 followed by the petitioners identification of the suit property. Thus the decree of eviction could not be executed and report was submitted by the process server to the effect that writ can only be executed by the Nazir with the help of police at the plaintiff's cost. So plaintiff filed an application under Order 21 Rule 97 same was registered as Misc. Case. Judgement debtor Nirmal Kumar Tamli did not contest the said Misc. Case. Added O.P.s who has obstructed the writ of possession contested the Misc. Case denying all the material allegation made in the said application under order 21 Rule 97. After hearing both side Learned Trial Court rejected plaintiff's application under Order 21 Rule 97.
(2.) Being aggrieved by and dissatisfied with the said order plaintiff/decree holder preferred an appeal before the Learned District Judge, Nadia which was transferred to Learned A.D.J., First Court, Kalyani and after hearing both side Learned First Appellate Court has confirmed the order of the Learned Trial Judge.
(3.) Being aggrieved by and dissatisfied with the said judgement of the Learned First Appelate court plaintiff has preferred Second Appeal before Hon'ble High Court at Calcutta. According to Learned Appellate Court the added O.P. are found to be in possession prior to filing of the Title Suit No. 82 of 1988. As per the report of the process server, decree holder / plaintiff had the knowledge about such possession of the added O.P. over the suit property at the time of filing of the suit. It was the observation of the Learned Appellate Court that the added O.P. were not implied in that suit. It was the specific observation of the Learned First Appellate Court that as the added O.P.s are not made a party in T.S. No. 82 of 1988. In such circumstances Learned Trial Court was perfectly justified in holding that the decree cannot be executable against this added O.P.s as they are not implied as the parties in the suit though the same is within the knowledge of the plaintiff.;