S. Chandrashekhar, J. - (1.) AGGRIEVED by order dated 13 -09 -2011 in Execution Case No. 07 of 2009, the petitioner claiming himself a tenant of the decree -holder and the judgment -debtor No. 11, has filed the present writ petition. It is stated that a Partition Suit No. 01 of 1984 was filed in which a preliminary decree was passed on 26.03.2009. Thereafter, a pleader commissioner was appointed who demarketed the share of the properties in the suit schedule property. After the final decree was passed, Execution Case No. 07 of 2009 was filed by the decree -holder in which the petitioner filed an objection which was registered as Misc. Case No. 04 of 2011. The Misc. Case No. 04 of 2011 has been dismissed vide order dated 13.09.2011. Aggrieved the petitioner has approached this Court by filing the present writ petition.
(2.) HEARD the learned counsel for the parties. Mr. Ananda Sen, the learned counsel appearing for the petitioner submits that, the petitioner who is a tenant of the decree -holder and the judgment -debtor No. 11 and who has been paying rent to both the decree -holder and judgment -debtor No. 11 cannot be evicted from the suit schedule property without due process of law. In a Partition Suit only share of the co -sharers is demarketed and therefore, for evicting the petitioner, a separate eviction suit was required to be preferred by the decree -holder however, in Execution Case No. 7 of 2009 no order for evicting the petitioner can be passed.
(3.) AS against the above, Mr. M.K. Dey, the learned Senior counsel appearing for the respondent No. 1 submits that, even the Misc. Case No. 04 of 2011 was not maintainable in as much as, the petitioner is not a party to the Partition Suit. It is further submitted that, after the preliminary decree was passed, a pleader commissioner was appointed who demarketed the suit schedule property. The report submitted by the pleader commissioner indicates that the petitioner was not found occupying the suit schedule property. It is stated that, the petitioner has been set up by the judgment -debtor only to delay the execution of the final decree passed in Partition Suit No. 01 of 1984.;