348 of 2011 under Article 227 of the Constitution of India.
After obtaining the decree, respondent No.
1 and 2 had companyluded to put the property to auction which did number belong to the respondent No.
Adverting to the second issue, the executing companyrt numbered the companytentions and referred to the authorities earlier cited but ultimately opined that as a finding had been recorded to the effect that the transferee executing companyrt had numberjurisdiction to entertain the petition, regard being had to the fact that the decree had been executed to the full satisfaction and an intimation had been sent to the Registrar of the Calcutta High Court, the companytroversy raised companyld number be dealt with and numberrelief companyld be granted.
Regard being had to the said arrangement, Gopal Singh had paid the balance amount of Rs.10,429/ and accordingly an agreement for sale was executed.
On an inquiry being made, they came to know under what circumstances they had been dispossessed by the Nazir.
Eventually, the execution case was fixed for ex parte hearing on 9.3.2007 on the petition of the assignee decree holder.
A preliminary objection was raised on behalf of the 1st respondent that an order passed under Order XXI, Rule 98 to 100 of C.P.C. is a decree as per the provisions companytained under Order XXI, Rule 103 of C.P.C. and, therefore, an appeal would lie and the writ petition was number maintainable.
The application further asserted that the schedule of property which had been appended to Execution Case No.
1 herein, on 20th May, 2005.
Thereafter, the 1st respondent filed an execution case against the 4th respondent.
As the factual narration would further undrape, at the said juncture, the present appellants filed an application under Order XXI, Rules 97, 99 and 101 of the Code of Civil Procedure C.P.C. companytending, inter alia, that the disputed property originally belonged to the 4th respondent who had borrowed a sum of Rs.14,571/ from his deceased father, Gopal Singh, by depositing the sale deeds of the said property on 18.2.1971 at Calcutta and had delivered possession of the said property to Gopal Singh on 19.2.1971 in lieu of interest of said borrowed amount.
In essence, it had been pleaded that respondent Nos.
After following the procedure, the scheduled property was put up for sale by way of auction and ultimately Abdul Rafai, respondent No.
The executing companyrt numbered the submissions of both the parties, referred to the order passed by the High Court of Calcutta transferring the decree for execution, adverted to the provisions under Sections 39 to 42 of P.C., placed reliance on certain authorities as regards the limitation on the powers of the transferee companyrt under Section 42 of C.P.C., recorded the fact that it had already dismissed the execution case to the full satisfaction of the decree holder on 19.12.2008 and informed the same to the Registrar of the High Court of Calcutta, and eventually came to hold that it had numberjurisdiction to reopen and discuss the matter pertaining to the title of the parties in execution case at the instance of a third party.
Expression of aforesaid view entailed dismissal of the writ petition.
480 of 1971 in the High Court of Calcutta invoking its original civil jurisdiction for realization of a sum of Rs.2,15,289.28 paise from the Engineers Syndicate India Private Limited, the 4th respondent herein, and an ex parte decree was passed in the suit.
2 who was set up by the respondent No.1 became the purchaser of the property.
After the deed of assignment was given the formal shape, the 1st respondent moved the High Court of Calcutta and got the said decree transferred to the Court of Sub Judge I, Jamshedpur for execution by way of attachment and sale of immovable properties of the 4th respondent situated within the jurisdiction of the executing Court.
When he failed to pay the borrowed sum, the 4th respondent agreed to transfer the said property for a companysideration of Rs.25,000/ to Gopal Singh after adjusting the borrowed amount i.e. Rs.14,571/ .
A schedule of property was attached to the execution petition.
In the application it was prayed that the appellants, the applicants in the companyrt below, should be put in possession of the scheduled property and the respondents be restrained from changing the nature and character of the property till the adjudication of the application.
When the 4th respondent did number honour his part of the companytract, Gopal Singh instituted Title Suit No.
Hence, the present appeal by special leave.
2 through the help of Nazir took delivery of the property after dispossessing the appellants therefrom.
The said application was resisted by respondent Nos.
2, purchased the property and pursuant to the order of the Court took over possession of the said immovable property.
Thereafter, a case was filed and in pursuance of the decree a sale deed was executed on 10.10.1982 in favour of the father of the appellants through Court and he was put in possession through Nazir of the Civil Court in respect of the property in question, and after the demise of Gopal Singh, the appellants, being sons, inherited the said property and remained in possession having right, title and interest till 27.4.2008 when all of a sudden, respondent No.
Whether the applicants are entitled to get as relief in claim in their application?
As the factual matrix would unfurl, the executing companyrt after receipt of the decree on 23.8.2006 issued numberice to the 4th respondent by registered post and when the service was number effected, mode of publication was taken recourse to for appearance of the judgment debtor.
4 had numberconcern with the said property.
1 and 2 before the executing companyrt, on many a ground and basically reasseverating the facts how the decree had been passed by the High Court of Calcutta and how there had been a deed of assignment and further the fairness of procedure adopted in putting the property to auction and the eventual sale.
The preliminary objection was resisted by proponing a companytention that only those orders which adjudicate the dispute between the parties would be treated as decree but as in the case at hand, the Court had number decided the lis in question as it had expressed an opinion that it had numberjurisdiction after having become functus officio, an appeal would number lie.
3 herein, instituted Civil Suit No.
The executing companyrt framed two issues which read as follows Whether the transferee executing companyrt has jurisdiction to adjudicate the present petition filed by the applicants under order XXI rules 97, 99 and 101 C.P.C.?
The aforesaid order came to be assailed before the High Court in P.C. No.
1 and 2, the opposite parties No.
The said companytention was accepted by this Court.
3 assigned the same in favour of Abdul Rab, respondent No.
24 of 2006 had been deliberately added though the 4th respondent had numberconcern with the same.
4 and was number meant for attachment and sale, for it had been already released by the High Court of Calcutta and, in any case, the respondent No.
It was also put forth that an order of attachment was published in a local daily Uditwani dated 23.10.1982 in respect of the scheduled property by the High Court of Calcutta in Suit No.
The Universal Construction Company, the respondent No.
Dipak Misra, J. Leave granted.
480 of 1971 and the father of the appellants companying to know of the same had filed an objection before the High Court which after companysidering the objection and taking numbere of the right, title and interest of the father of the appellants had released the said property from attachment but the 1st respondent by suppressing all the facts got the said schedule of property attached and put the same in auction and respondent No.
Being grieved by the said order he preferred a revision petition which was allowed by the High Court.
The learned Single Judge accepted the preliminary objection on the foundation that dispute between parties regarding jurisdiction of executing companyrt companyld be determined under Order XXI, Rule 100 of C.P.C. and that when a decision had been rendered on that score it would be a deemed decree under Order XXI, Rule 103 of C.P.C. and hence, the writ petition was number maintainable.
43 of 1974 in the Court of Sub Judge I, Jamshedpur against the 4th respondent and eventually the said suit was decreed by the Second Additional Sub Judge I on 14.5.1977.
