D.K.Seth, J. - (1.) - This appeal is directed against Order No. 31 dated 12th December, 1997 passed in Misc. Case No. 1610 of 1995 by the learned Judge. City Civil Court Calcutta, Twelfth Bench. The said Misc. Case arose out of a proceeding under Order XXI Rule 99 of the Code of Civil Procedure (CPC). Briefly stated, the facts are as follows :-
(2.) Pursuant to an ex parte decree against one Archana Misra, the petitioner Bibhuti Bhusan Dutta was dispossessed in course of execution. According to the applicant, the ex parte decree against Smt. Archana Misra was obtained by the plaintiff Samarendra Nath Misra by practicing fraud and collusion upon the Court. Inasmuch as the applicant was the tenant in respect of the suit premises after having the talk of tenancy with Dr. Misra, who had pointed out that the receipts would be granted by his wife and accordingly, the receipts used to be granted by the wife of Dr. Misra being Smt. Archana Misra. The said Smt. Archana Misra had instituted a suit for eviction against the applicant being suit No. 487 of 1990 in the City Civil Court at Calcutta, which was being contested, by the applicant. During the pendency of the said suit, Dr. misra, plaintiff-decree-holder instituted a suit for eviction against his wife Smt. Archana Misra in the City Civil Court at Calcutta being Ejectment Suit No. 113 of 1993. The applicant/appellant was inducted as tenant on June 15, 1983. The suit file by the plaintiff/respondent herein was decreed ex parte against Smt. Archana Misra on 2nd of August 1994. The bailiff submitted a report on 24th November 1984 that the execution was resisted by the wife Smt. Archana Misra. He apprehended breach of peace. Therefore, returned the writ unexecuted. On 25th November, 1994, on an application under Order XXI Rule 97 CPC, police help was granted by the Court. In execution, the appellant/applicant was dispossessed. Thereafter, the Ejectment Suit No. 487 of 1990 filed by Smt. Archana Misra was dismissed for non-prosecution, on the prayer of Smt. Archana Misra, on 31st of June, 1995. The appellant/applicant filed an application under Order XXI Rule 99 read with section 151 CPC being the present Misc. Case No. 1610 of 1995 on 19th July, 1995. The Misc. case was dismissed on 30th March, 1996. F.M.A. 1256 of 1997 was filed before this Court on 25th November, 1995. The said appeal was allowed on 19th of September, 1997, remanding the case to Court below. On remand, the order appealed against was passed on 12th of December, 1997 rejecting the said application under Order XXI Rule 99 CPC. Submission of the Appellant :
(3.) The learned counsel for the appellant points out that under Order XXI Rule 99 of the Code of Civil Procedure, the relief can be had by a person who is not a judgment-debtor. The appellant has sought to point out that he was not the judgment-debtor. In other words, according to him, the appellant is not bound by the judgment. In order to bring his contention home, the appellant had attempted to make out a case that he was a tenant under the plaintiff Dr. Samarendra Nath misra on whose behalf the receipts were granted by his wife Smt. Archana Misra. He was not a tenant under Smt. Archana Misra and thereby a sub-tenant in the premises and as such, the decree could not be binding upon him. 3.1. In support he had also attempted to make out a case that the ex parte decree against Archana Misra was obtained by Dr. Samarendra Nath Misra fraudulently and in collusion between themselves. In support he had pointed out to the materials on record and took us through it. He has pointed out that initially Smt. Archana Misra appeared in the suit but did not contest the same and allowed the suit to be decreed ex parte. At the time when the suit was decreed, the relationship of landlord-tenant and between Dr. Samarendra Nath Misra and Smt. Archana Misra was not established. There was no material to prove that Archana Misra was a tenant under Dr. Samarendra Nath Misra, the plaintiff. According to him, even in respect of an ex parte decree, a plaintiff has to establish his case. The Court cannot pass a decree until the case of the plaintiff is established. In the present case, a case was sought to be established through collusion between the plaintiff and defendant who did not appear in the suit. 3.2. He has also pointed out that in the plaint the plaintiff had contended that he had let out the premises to his wife at a rent of Rs. 800/- (Rupees eight hundred only) per month. It is also one of the grounds, which hints at the collusion between the plaintiff and the defendant. Inasmuch as a tenant would not sublet a premises for the same rent, which he pays to the landlord. 3.3. He also points out that the learned trial Court, in fact, has not entered into the question raised by the applicant with regard to the fraud and collusion. According to him, under Rule 101 of Order XXI of the Code, all questions raised by the parties are to be decided in the proceeding itself and not by a separate suit. Since this question has been raised, it was incumbent upon the Court to enter into the said question and decide the same as to whether there was any fraud and collusion. But the Court had proceeded only on the basis of filing of a proceeding by the appellant before the Rent Controller against Smt. Archana Misra. There he had admitted Smt. Archana Misra as his landlord. Therefore, he is estopped from contending that he is a tenant under Dr. Misra. But the Court had overlooked the question that he had alleged fraud and collusion between the plaintiff and the defendant perpetrated upon the Court in obtaining the decree in order to evict the appellant/applicant. 3.4. He also points out from the statements made by PW 1 Dr. Samarendra Nath Misra that he had admitted that he had signed on the counterfoil of some of the receipts. He has further pointed out that even during the course of this proceeding, Dr. Misra had not produced any document to show that Archana Misra was a tenant under him. He purported to show certain receipts, which were for the period from 1991. But those were not produced before the Court to mark them Exhibit. The question of fraud and collusion was staring on the face of the proceedings. This ought to have been gone into by the learned trial Court. Therefore, the judgment cannot be sustained.;