S.K. Sen, J. - (1.) The facts involved in this writ petition, inter alia, are that pursuant to the decree passed in Partition Suit in respect of two properties, viz. at 22, Beltola Road, Calcutta, and at 88A, Hazra Road, Calcutta, the property being premises No. 22, Beltola Road, was allotted to the writ Petitioner whereas the property being premises no,88A, Hazra Road, was allotted to the Respondent no.11. The writ Petitioner, however, continued to remain in possession of a portion at 88A, Hazra Road. The said Respondent No. 11, however, sold the said property to the Respondent Nos. 5 to 9. The said Respondents Nos. 5 to 9 instituted an Ejectment Suit in the Alipore Court and, ultimately, got a decree for ejectment, and the said decree was executed through bailiff and they obtained possession of the said property. The bailiffs report has been annexed to the affidavit-in-opposition affirmed by the Respondent No. 3 on behalf of the Respondents Nos. 5 to 9. The said bailiffs report also records that the possession was delivered to the Respondents Nos. 5 to 9 in respect of the property at 88A, Hazra Road, Calcutta.
(2.) Mr. Ashok Banerjee, learned Advocate for the writ Petitioner submits that the Respondents Nos. 5 to 9 wrongfully obtained an order from the Additional District Magistrate (Judicial) on March 11, 1992 under Section 144 of the Code of Criminal Procedure and the learned Additional District Magistrate (Judicial) was not correct in passing an order to the effect that the Officer-in-Charge, Tollygunge P.S. will see that no breach of peace takes place at the time of delivery of possession to the Respondents Nos. 5 to 9. As already noted however, bailiffs the report has been annexed to the affidavit-'n-opposition which records that the said Respondents delivered possession to the bailiff. The said entire order-sheet of Title Execution case No. 14 of 1992 has been annexed to the affidavit-in-opposition which does not disclose that the possession was obtained on the basis of the Magistrate's order or through Police, it has been submitted by Mr. Banerjee, learned Advocate for the Petitioner, that the said recording was not made as there was collusion with the said Respondents and the bailiff, but the said allegation is not borne out from the records. It has also been submitted by Mr. Banerjee that an application under Order 9 Rule 13 is pending before the learned Munsif since March 1992. The Petitioner should have pursued the remedy and could have moved an application for stay in the said proceeding itself. The Petitioner was seek appropriate relief in the pending proceeding. In that view of the matter, in my view, it will not be proper to pass any order interfering with the possession obtained in execution of the order passed in Title Execution case on the basis of which the said Respondents have received possession. Accordingly, I am of the opinion that this is not a fit case where the writ Court should interfere.
(3.) Mr. Banerjee, learned Advocate appearing on behalf of the Petitioner, has relied upon a decision of the Supreme Court passed in the case of State of Madhya Pradesh v. Babu Lal and Ors. A.I.R. 1977 S.C 1718 where a suit was filed in contravention of the Madhya Pradesh Act. The High Court held that a suit could be filed for a declaration that the decree is null and void and the High Court refused to interfere with the order. The Supreme Court, however, held that the High Court was wrong in refusing to interfere in the Writ Jurisdiction and should have issued a Writ of certiorari. The Supreme Court accordingly quashed the proceeding in the suit. In my view, the said decision is not applicable to the facts and circumstances of this case. In the instant case, as I have already noted that here is adequate remedy according to the provisions of the Code of Civil Procedure and the petition should not have moved this writ petition. The other decision relied upon by Mr. Banerjee is that of Smt. Usha Ghosh v. Rabindra Nath Das and Ors. 1991 (1) C.L.J. 434 wherein in the Second Appeal an application was filed for restoration of possession and the Division Bench of the Court while sitting in the Second Appeal Jurisdiction directed restoration of possession in the facts and circumstances of the said case. The proposition laid down by the Division Bench of the Court in the said decision are well-settled but the said order was passed by the Division Bench while disposing of an application in a Second Appeal. The question before me is whether the Writ Court should interfere in such matter. The said decision, therefore, is also not applicable in the instant case.;