S.K. Mookherjee, A.C.J. - (1.) An application for substitution was preferred on behalf of estate the executor to the estate of the respondent to the present appeal. In course of hearing, however, affidavit were filed by other heirs indicating to the Court that they had no objection to the impleadment of the executor in place and stead of the plaintiff/respondent, either by himself or along with other heirs. It was also stated before this Court that the Will left by the deceased had been probated.
(2.) In such view of the matter, we dispose of the substitution application and the connected affidavits by directing that the executor as also all the heirs as mentioned in the affidavit of Srimati Jiwani Kumari Parakh be substituted in her place and stead and a formal amendment of the memorandum be carried out by the Department.
(3.) This is an appeal at the instance of an alleged subtenant in a shop room in the disputed premises. There was a decree which was confirmed upto the Apex Court for possession and the said decree was put into execution. In the execution application, the present appellant was impleaded as a party along with a prayer that the delivery of vacant possession be made, amongst others, of the shop room known as "French Agency" in premises No. 7/l-A, Lindsay Street, Calcutta. In the execution case, the present appellant filed an application, inter alia, asserting that though he was impleaded in the execution proceeding relating to premises No. 7/l-A, Lindsay Street, he had a shop room being.No. 7/l-A at premises No. 7/1-C, Lindsay Street by the name of "French Agency", and, in the background of such factual assertion, he prayed for, inter alia, a declaration that the decree in question was not binding on the applicant/present appellant and did not affect the space or tenancy in question under his occupation or enjoyment. In support of the said statement, the appellant/applicant furnished rent receipts showing the premises in which his tenancy existed. It is pertinent to note, at this stage, that the appellant was not impleaded as a party in the suit in which the decree in question had been passed upon an allegation that he was an unlawful subtenant. The learned trial Judge by his impugned order, dated 14th March, 1997, heard out three applications, including the application of the present appellant and disposed of the same, inter alia, allowing the execution application. While passing the said order, the learned trial Judge came to a finding that the firm "French Agency", admittedly, belonged to the relations of the deceased judgment-debtor and that the present appellant had attempted to make out a case that it was a joint tenant along with the judgment-debtor in respect of the said shop room. The rent receipts on which reliance was placed, according to the learned Judge, indicated that the judgment-debtor was the sole tenant in respect of the shop room, and, as such, the learned Judge disbelieved the story of joint tenancy. Challenging the said order, as indicated hereinabove, the present appeal has been preferred.;