Jyotirmay Bhattacharya, J. - (1.) This application under Article 227 of the Constitution of India is directed against an order being No. 52 dated 13th September, 2002 passed by the learned Additional District Judge, Nadia, Fast Track Court - II at Krishnagar in Title Appeal No. 76 of 1995 by which the petitioner's prayer for stay of all further proceedings of Title Execution Case No. 1 of 1971 pending before the learned Civil Judge, (Senior Division), 1st Court at Krishnagar, was rejected by the learned Appellate Court.
(2.) The plaintiff/appellant in a suit for declaration of title and for recovery of possession is the petitioner before this Court in this application under Article 227 of the Constitution of India.
(3.) For proper appraisal of the merit of this application, the facts leading to the filing of this application are set out hereunder A. In 1955 one Panchanan Saha, since deceased, the father of the opposite party No. 2 herein filed a suit for specific performance of contract against Sarat Sundari Saha, the predecessor-in-interest of the petitioners herein for sale of the suit property in favour of the said Panchanan Saha. The said suit which was filed in the Court of Subordinate Judge at Krishnagar was registered as Title Suit No. 224 of 1955. Subsequently, on transfer of the said suit, the said suit was renumbered as Title Suit No. 6 of 1958 before the learned Civil Judge (Senior Division), 1st Court at Krishnagar. B. After receiving the writ of summons of the said suit on 6th June, 1958, the said Sarat Sundari gifted the suit property in favour of the petitioners herein by two registered Gift deeds dated 10th September 1958 and 14th October, 1958, during the pendency of the said suit. C. In 1961, the petitioners herein filed a suit being Title Suit No. 41/1961-31/1965 against the opposite party No. 2 herein for declaration of title on the basis of their acquisition of title through the aforesaid Gift deeds and for recovery of possession from the said opposite party No. 2. It may be mentioned herein that the said suit was filed against the opposite party No. 2 herein as in the meantime Panchanan Saha died testate and the said opposite party was substituted in the place of the said Panchanan Saha in all the pending suits on the strength of the probate granted in respect of the Will left by Panchanan by which Panchanan bequeathed the suit property in favour of the opposite party No. 2 herein. D. The said suit, though was initially decreed in favour of the petitioner, but ultimately the said decree was set aside in appeal and the Appellate Court remanded he said suit for retrial to the Trial Judge. After such remand the said suit was dismissed on contest on 16th March, 1995 by the Court of the Assistant District Judge, 2nd Court at Nadia. E. The petitioners herein preferred an appeal against the said decree before the learned Additional District Judge, Nadia, and Fast Track-II at Krishnagar. The said appeal was registered as Title Appeal No. 76 of 1995. The said appeal is still pending for disposal. F. In the meantime, the suit for specific performance of contract being Title Suit No. 6 of 1958 was dismissed by the learned Trial Judge. An appeal was preferred by the opposite party No. 2 herein before this Court. The said appeal was registered as First Appeal No. 194 of 1967. The said appeal was ultimately ended with a comprise decree by which a decree for specific performance of contract was granted in favour of the opposite party No. 2 herein on 2nd September, 1969. Pursuant to the said decree, entire consideration money was paid to the judgment debtor by the decree holder and accordingly possession of the suit property was given to the decree holder, viz., the opposite party No. 2 herein. G. But unfortunately, no need of conveyance was executed by the judgment debtor in favour of the said decree holder in terms of the said decree. Accordingly, the said decree was put into execution only for the purpose of execution and registration of the Title deed in favour of the opposite party No. 2 herein through Court. The said execution proceeding was registered as Title Execution Case No. I of 1971. H. On an application under Section 47 of the Civil Procedure Code filed by the judgment debtor in connection with the said execution proceeding, the further proceeding of the said execution proceeding was stayed till the disposal of the petitioner's suit for declaration and recovery of possession being Title Suit No. 31 of 1965. The said order was passed by the Executing Court in Misc. Case No. 96 of 1977. 1. In 1972, the petitioners herein opened another chapter of litigation by filing another suit being T.S. No. 49/1972-T.S. No. 7/1975 for challenging the said compromise decree passed in the aforesaid suit for specific performance of contract. The said suit was ultimately dismissed on contest and the appeal there from being Title Appeal No. 75 of 1975 was also dismissed on contest. The said chapter thus ended with dismissal as no further appeal was preferred there from. J. Subsequently the proceeding under Section 47 of the Civil Procedure Code was also dismissed on contest by the learned Executing Court. K. Since the stay of further proceeding of the execution case stood vacated on 16th March, 1995 with the dismissal of the petitioner's suit for declaration and recovery of possession being Title Suit No. 31 of 1965, the petitioner herein filed an application for stay of further proceeding of the said execution case before the Executing Court on 21st July, 2001 on the ground that if the execution is completed during the pendency of the appeal being Title Appeal No. 76 of 1995, the said appeal will become infructuous. The said application was dismissed by the learned Executing Court on contest on 18th March, 2002. Since no further challenge was made against the said order of rejection the said chapter ended accordingly. L. Being unsuccessful in the said proceeding, petitioners herein made another attempt for staying the further proceedings of the said execution case by filing an application for stay before the learned Appellate Court in connection with Title Appeal no. 76 of 1995 on 30th July, 2002. The said application was also dismissed on contest by the learned Appellate Court on 13th September, 2002. M. The said order of rejection of the petitioner's application for stay is under challenge before this Court. ;