Harish Tandon, J. - (1.) The present litigation is principally restricted between a third party to a decree and the decree holder resisting the execution in respect of a portion of a decretal property.
(2.) The opposite party no. 1 obtained a decree in Title Suit No. 12 of 1997 filed against the opposite party no. 2 for its eviction in respect of premises no. 9, K.P. Singhee Road, Cossipore, Kolkata from the Court of the Learned Additional District Judge, Sealdah. The entire decretal premises comprised of 2,14,618 square feet of land together with structures. The said decree was assailed before the Appellate Court by the opposite party no. 2 and it is undisputed that the said opposite party later did not proceed with the said appeal. The decree was put into execution and in course of the execution proceeding spate of applications came to be poured in from various third parties asserting their independent right, title and interest that the decree is not binding upon them. The aforesaid proceedings were initiated under Order XXI Rule 97 to 101 of the Code of Civil Procedure and one of such proceedings was registered as Miscellaneous Case No. 4 of 2015. In the said Miscellaneous Case, the present petitioner was subsequently added as opposite party no. 3 and was permitted to disclose his defence. The present petitioner deposed in the said proceeding asserting its independent status in respect of a portion of a decretal property as well as the possession having given by the decree holder. The several applications, which were registered as Miscellaneous Cases were tried together and dismissed by the Executing Court with categorical observation that the petitioner never got possession of any portion of the decretal property. Subsequently, the petitioner filed the independent application under Order XXI Rule 97 to 101 of the Code which gave rise to registration of Miscellaneous Case No. 5 of 2017 inviting the Executing Court to adjudicate independent right, title and interest in respect of the said portion of the decretal property.
(3.) For the purpose of better understanding and to address the issue both on facts and law, the case, which is made out by the petitioner is adumbrated herein below:- (i) the petitioner entered into an agreement to lease on 1st July, 2006 with the decree holder / opposite party no. 1 in respect of an area measuring 60,000 square feet of premises no. 9, Kali Prasanna Singhee Road, Kolkata for a period of 21 years; (ii) it was agreed in the said agreement that the decree holder shall grant a lease in favour of the petitioner for the said period upon a payment of Rs. 3/- per sqaure feet in respect of the aforesaid 60,000 square feet occupied area by its business associates at the said premises; (iii) the salient features of the agreement as it would appear therefrom are that the decree holder shall accept the petitioner as intending lessee subject to the disposal of the eviction suit filed against the opposite party no. 2; (iv) it was further agreed that the lease amount / fees of Rs. 1,80,000/- shall be paid in advance for each month its due and a further sum of Rs. 5,40,000/- shall also be paid on account of default of payment since January, 2006 for the said occupied area. Apart from the same, a further sum of Rs. 10,80,000/- being equivalent to 6 months adhoc fees amount shall be paid by the petitioner which will be adjusted at the rate of Rs. 1,00,000/- per month from the subsequent till its full adjustment.;