Sudhendu Nath Mallick, J. - (1.) Both these two revisional applications have been heard analogously and would be governed by the following order.
(2.) Both the applications arise out of the order dated 24.7.96 passed by the learned Judge-in-Charge, Bench No. 5, City Civil Court, Calcutta in Misc. Case No. 526 of 1996, filed by M/s. Capstan Shipping Estate (P) Ltd., the O.P. No. 2 in C.O. 1649 of 1996 and petitioner in C.O. No. 1650 of 1996 under Order 21 Rule 101 read with Section 151 Civil Procedure Code. praying for adjudication of its right, title and interest in respect of the disputed property and for dismissing the ejectment execution case No. 28 of 1996 pending in the said court. By the impugned order the learned Judge has held that in view of the facts and circumstances of the case the application under Order 21 Rule 101 Civil Procedure Code. does not lie but at the same time he has held that an enquiry into the matter should be made Section 151 Civil Procedure Code. It is his categorical finding that although the Misc Case does not specifically lie under Order 21 Rule 101 Civil Procedure Code. but the said Misc Case is maintainable in law, under Section 151 of the Civil Procedure Code. The reasonings given by the learned Trial Judge may be quoted below:- "It is fact that Order 21 Rule 101 Civil Procedure Code. is not applicable in this case. It is also a fact that the applicant is a third party-resistor. According to Order 21 Rule 101 Civil Procedure Code. third party-resistor cannot bring a separate suit. It is also a fact that Order 21 Rule 97 or Rule 99 Civil Procedure Code. is not applicable in case of third party-resistor. Then the question arises as to what is the remedy of the third party-resistor. The answer is that the third party-resistor has no other alternative but to file a Misc. Case under Section 151 Civil Procedure Code. When the applicant has challenged the ex parte decree as a collusive on and submits that fraud has been practised upon the Court to obtain ex parte decree, in that case without hearing the Misc. Case No. 556/96 or without recording the evidence on the points of collusion and fraud, the Misc. Case cannot be thrown out on the ground that it is not maintainable at all. So I hold that the Misc. Case under Section 151 Civil Procedure Code. is maintainable in law."
(3.) The learned Counsel appearing for Silverline Forum Private Limited, the appellant-petitioner in C.O. No. 1649 of 1996 has contended that the above order passed by the learned Trial Judge is absolutely illegal and as such it should be set aside under Section 115 Civil Procedure Code. According to Mr. Majumdar, the learned Counsel appearing for the above petitioner, in view of the finding of the learned Trial Judge that such a Misc. Case is not maintainable under Order 21 Rule 101 CPC, he should have dismissed the same outright as there was no scope to hear out the said Misc. Case independently under Section 115 Civil Procedure Code. Mr. Majumdar has made strenuous efforts to argue on the merits of the opposite party No. 2's application under Order 21 Rule 101 read with Section 151 Civil Procedure Code. to bring home the point that the said O.P. No. 2 has no case at all to be decided under Order 21 Rule 101 or independently under Section 151 Civil Procedure Code. On the other hand, Mr. Panja and Mr. Roychowdhury, the learned Counsel appearing for the O.P. No. 2 Messers Capstan Shipping etc. who is also the petitioner in the second revisional application have contended that the said company has an independent right to be adjudicated upon under Order 21 Rule 101 Civil Procedure Code. or at least under Section 151 Civil Procedure Code. But I must note that the merits of the case pending before the learned Trial Judge have not yet been considered by the Trial Judge because the impugned order was passed by the Trial Judge on the point of maintainability of the above Misc. Case taken on behalf of the present petitioner before him. There is no finding of the Trial Judge in the impugned order about the merits or otherwise of the Misc. Case. In that view of the matter this Court will not make any observation on the merits of the case. It is only to be seen whether by passing the impugned order the learned Trial Judge has exercised a jurisdiction not vested in him by law or has failed to exercise of jurisdiction so vested or has acted in the exercise of his jurisdiction illegally or with material irregularity and that if such order is allowed to stand it would occasion a failure of justice or cause irreparable injury in the party against whom it has been made. The revisional court is also to see in the alternative if the order had been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceeding. There is, however, no case that the Trial Judge have failed to exercise his jurisdiction so vested on the part of any of the petitioners in the above two revisional applications. This is to be seen whether Trial Judge by directing the Misc. Case to be heard under Section 151 has exercised a jurisdiction not vested in him by law or while passing the above order has acted illegally or with material irregularity and above all whether the impugned order is allowed to stand would occasion a failure of justice or cause irreparable injury to the petitioners. Although the question of considering the above Misc. Case on merits by this High Court does not arise at all it would be of great advantage to refer to the admitted or undisputed set of facts to appreciate the contention of the parties to the present proceedings.;