Dibyendu Bhusan Dutta, J. - (1.) The instant application under Article 227 of the Constitution of India is directed against the Order No. 127 dated August, 27, 1998 passed in Misc. Case No. 1757 of 1995 of the Ninth Bench of City Civil Court, Calcutta.
(2.) This matter has a chequered undisputed background which may be disclosed as follows. The opposite party filed a suit being Title Suit No. 1784 of 1988 claiming to be a tenant in respect of a shop-room of the premises No. 16A, Radhabazar Street, Calcutta. An application for temporary injunction was filed in the suit by the opposite party. The said application was rejected by the trial court on a finding that the opposite party was not in possession of the said shop-room on the date of filing of the suit. The plaintiff amended the plaint by including a prayer for recovery of possession. The plaintiff filed a second suit being Title Suit No. 107 of 1989 under Section 6 of the Specific Relief Act alleging forcible dispossession by the defendant petitioner from the said shop room and obtained an ex parte decree on 4.6.90 and, in execution of that decree, got the delivery of possession through Court on 22.5.92. The first suit was, however, allowed to be dismissed for default. The defendant petitioners filed an application under Order 9, Rule 13 Civil Procedure Code. for setting aside the decree on the allegation that it was obtained by fraudulent suppression of summons and the said application was allowed. The ex parte decree was set aside on 5.5.93. The second suit being Title Suit No. 107 of 1989 was thereafter allowed to be dismissed for non-prosecution on 22.7.93. The defendant petitioners filed an application under Section 144 of the Civil Procedure Code for restitution in relation to the possession which. they had lost directly in consequence of the ex parte decree passed in the second suit which was set aside. The said application was allowed by the trial court by its order dated 6.12.93. The said order being a decree within the meaning of Section 2(2) Civil Procedure Code. was put into execution in Title Execution 10 of 1994 by the petitioners. The plaintiff respondent preferred an appeal being FAT 553 of 1994 before the High Court against the order dated 6.12.93 allowing the application under Section 144 Civil Procedure Code. and the said appeal was dismissed by the Division Bench on 16.9.94. The plaintiff respondent filed the third suit being Title Suit 974 of 1995 and approached the Court for an injunction restraining the petitioners from proceeding with the Title Execution Case No. 10 of 1994. Ad interim injunction was refused to be granted by the Trial Court and against the said order of refusal, appeal being FMAT of 1995 was preferred before the High Court at the instance of the plaintiff respondent. The Division Bench on 28.6.96 directed the Trial Judge to hear the injunction application afresh. The trial Court after rehearing granted a temporary injunction against which the petitioners preferred an appeal before the High Court being FMA 128 of 1997. The Division Bench by its order dated 12.5.98 allowed this appeal and set aside the injunction that was granted by the Trial Court. In the meantime, the plaintiff filed three Misc. cases, all under Section 47 CPC, one after another in Title Execution No. 10 of 1994 which were registered as Misc. Cases Nos. 1451 of 1994, 2471 of 1994 and 817 of 1995 and prayed for stay of the said execution case till the disposal of the said three Misc. cases. While considering the prayer for stay, the executing Court by order dated 29.4.95 not only rejected the prayer for stay but also dismissed the Misc. Cases on merits on a finding that they were not maintainable. Against the said order of rejection of stay and dismissal of the three Misc. Cases, the plaintiff moved the High Court in C.O. 829 of 1995 and the High Court by order dated 19.5.95 set aside the order of dismissal of the Misc. cases and remanded them for re- hearing in view of the fact that the Misc. cases were dismissed on a date on which they were not fixed for hearing. In disposing of the said civil revision (C.O. 829 of 1995), the High Court did not, however, interfere with the executing Court's order so far as it relates to the stay of the execution case nor did it grant any stay of the said execution case. After remand, the plaintiff respondent prayed for stay of the execution case till the disposal of only the last Misc. case that is to say Misc. Case No. 817 of 1995 and not the earlier two Misc. cases. The prayer for stay was rejected and the respondent came up in revision before the High Court. During the pendency of that revision all the three Misc. cases under Section 47 of the Civil Procedure Code. were dismissed for default as a result of which the revision case became infructuous and was withdrawn. The said Misc. cases were, however, restored. The title execution case was, however proceeded with by the petitioners at a time when there was no stay of that execution in operation. While the bailiff went to deliver possession, resistence was offered by the plaintiff respondent whereupon the petitioners filed an application under Order 21 Rule 97 Civil Procedure Code. registered as Misc. case 1727 of 1995 in the said execution case. The hearing of this Misc. case did, however, commence on 7.12.96 when one witness was examined on behalf of the petitioners in full and was cross examined in part and a document was also marked exhibit. Since then, the further hearing of the said Misc. case has not yet resumed. On 27.8.98, the said Misc. case was fixed for further hearing and the petitioners filed the xerox copy of the order dated 12.5.98 by which the Division Bench of the High Court allowed the appeal (FTA 128/97) against the grant of temporary injunction in the third suit being Title Suit No. 974 of 1995. The plaintiff opposite party, on the other hand, filed an application for disposal of the three Misc. cases under Section 47 Civil Procedure Code. The opposite party's application was opposed on behalf of the petitioners and the executing Court took up that petition for hearing and upon hearing both sides on 27.8.98, directed the said three Misc. cases to be heard first with the observation that the date of further hearing of the Misc. case under Order 21 Rule 97 Civil Procedure Code. that is Misc. case 1757 of 1995 would be fixed only after the disposal of the aforesaid three Misc. cases under Section 47 Civil Procedure Code. and the executing Court advanced the date of hearing of those three Misc. cases from 21.12.98 to 13.11.98. It is this order which has been challenged by the petitioners in the present revisional case.
(3.) It is needless to comment that the impugned order directing the hearing of the three Misc. cases under Section 47 Civil Procedure Code. first before the Misc. case under Order 21 Rule 97 Civil Procedure Code. in effect amounted to an order of stay of the said Misc. case under Order 21 Rule 97 till the disposal of the three Misc. cases under Section 47 Civil Procedure Code. filed in the execution case.;