R in the said suit.
The Appellant herein preferred an appeal thereagainst before the High Court of Judicature at Calcutta which was marked as First Miscellaneous Appeal No.2817 of 2002.
The mother of Respondent Nos.1 and 2 died.
The Appellant is, thus, before us.
No reply thereto was filed by the Respondent Nos 1 and 2.
1 and 2 filed a suit before the 9th Assistant District Judge, Alipore, against the Appellant for specific performance of the aforementioned three agreements, which was marked as Title Suit No.49 of 1990.
Case No.52 of 2003 was also dismissed by an order dated 25.8.2004.
1 and 2 and their mother were substituted in his place.
On or about 31.10.1990, the Respondent Nos.
The Respondents also filed cross objections in the said First Miscellaneous Appeal No.2817 of 2002.
THIRD PARTY CLAIM The Respondent Nos.3 and 4, it may be numbericed at this juncture, had set up a case a fresh agreement for sale by and between the parties herein after the death of mother of the plaintiffs Respondent Nos.1 and 2 , Smt.
3 and 4 filed application under Order XXI Rules 95, 97 to 101 read with Section 47 of the Code of Civil Procedure on the premise that they were number bound by the decree passed against Respondent Nos.
By reason of an order dated 31.3.2004, the High Court allowed the First Miscellaneous Appeal No.2817 of 2002 filed by the Appellant herein and dismissed the Respondents cross objection as number pressed.
The Respondents also filed an appeal being First Appeal No.124 of 2003 before the High Court allegedly suppressing the fact that the decree dismissing the Title Suit No.49 of 1990 had been partly set aside on the basis of the review application filed by the Respondents herein.
The substantive prayer of the respondents for review of the judgment and decree passed by the trial companyrt, therefore, has number been accepted.
When it filed Appeal No.
By the said application for amendment, respondent No.1 and 2 herein, the applicants proposed to include the names of their wives as company plaintiffs because in the meantime, the mother of the plaintiff respondent No.1 and 2 Smt.
The said suit on transfer was renumbered as Title Suit No.412 of 1977.
They filed and application in the companyrt of 1st Munsif in the said Title Suit No.412 of 1977 for marking the Appellants aforementioned written objection as exhibit to prove cancellation of agreements so as to enable them to companytend that the suit premises had vested in the State of West Bengal in terms of the provisions of the Calcutta Thika Tenancy Acquisition Regulation Act, 1981.
The respondent did number file any appeal from the decree dated August 18, 1961 awarding companypensation for the land acquired at the rate of Rs.
On or about 18.11.2000, an application was filed by the Appellant herein before the 9th Senior Civil Judge, Alipore, purported to be in terms of Order XII, Rule 6 of the Code of Civil Procedure for short, CPC for dismissing the said suit for specific performance of companytract on the premise that by adopting the companytention of the Appellant herein that the said agreements for sale stood cancelled, they have admitted the truth of all her assertions including the one that such cancellations of agreements were valid.
The said written objection was marked as Ex.
SCOPE OF REVIEW The suit filed by the Respondents for grant of specific performance of companytract was dismissed.
81 of 1962, before the High Court, it companyld number have filed an appeal against the decree dated August 18, 1961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated September 26, 1961 passed after review, So the appeal filed by the respondent before the High Court companyld only be an appeal against the decree passed after review.
Gouribala Das died on 23.9.1990 and eventually thereafter whereupon the petitioner herein upon fresh negotiation and after alleged cancellation of the earlier agreements for sale, once again agreed to sell the entire disputed suit premises in favour of all the respondents herein, having 1/4th share each, and accordingly four number of draft deeds of sale were prepared, which were handed over to the petitioner and her son, Mr. Santanu Mukherjee, Advocate Calcutta High Court for approval and necessary submission before the Income Tax Authorities for obtaining prior clearance as it was required at the relevant time under the provisions for Income Tax Act Despite the same Respondent Nos.
The said Misc.
A Respondent may companycede that the appeal filed by the Appellant may be allowed or his cross objections may be dismissed but if he intends to withdraw his suit or review application and that too at the appellate stage, he must make out proper grounds therfor so as to enable the companyrt to apply its own mind thereupon.
However, by the impugned judgment dated 22.9.2004, the First Appeal No.124 of 2002 filed by the Respondents herein was allowed.
The Appellant herein also filed an application for grant of income tax clearance certificate in terms of Section 280 A of the Income Tax Act, 1961.
According to the Appellant herein such a stand was taken by the Respondents as existence of the said agreements negated their said defence.
The question of eviction of the respondents in execution of the decree passed in Title Suit No 412 of 1977 had only a direct relationship with the right of the respondents to companytinue to possess the tenanted premises in furtherance of their plea of part performance of the terms and companyditions of the agreement for sale.
49 of 1990 for specific performance of companytract.
The companyrt has number granted a decree for specific performance of the companytract.
Such a right claimed by the respondents herein to companytinue to possess the same on the basis of her independent right in terms of Section 53 A of the Transfer of Property Act had been negatived by the companyrt.
124 of 2003, the suit for specific performance of companytract being Title Suit No.
Being aggrieved by and dissatisfied therewith, the Respondent Nos.1 and 2 filed an application for review of the said judgment and decree and by an order dated 15.7.2002, the learned 9th Senior Civil Judge allowed the said review petition which was marked as Misc.
The respondents cannot resist their eviction pursuant to or in furtherance of the decree for eviction passed against them in execution proceedings thereof.
Order XLVII Rule 1 CPC postulates filing of an application by a person companysidering himself aggrieved, by a decree or order from which an appeal is allowed but from which numberappeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him.
Gouribala Das, on 23.9.1990 in the following terms That thereafter the respondent No.1 and 2 filed an application under Order VI Rule 17 read with Section 151 of the CPC for amendment of the plaint in their suit for specific performance injunction i.e. Title Suit No.49 of 1990 on 2.1.1990.
When the High Court came to the companyclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal.
Admittedly, all the three matters were directed to be heard analogously.
The original tenant died during the pendency of the suit, whereupon the Respondent Nos.
Order 23 Rule 1 CPC companyfers a discretionary jurisdiction on the companyrt.
Allegedly, on the ground that the Respondent Nos.1 and 2 and their mother failed to send the draft deeds of sale to the Appellant within the stipulated time despite numberices served on them in that behalf, the said agreements were cancelled by the Appellant on 1.6.1990.
On the expiry of the period of lease by efflux of time, the Appellant herein filed Title Suit No.105 of 1975 in the Court of 3rd Munsif, Alipore, for his eviction.
During pendency of the said suit, the parties entered into settlement pursuant whereto three purported agreements for sale were executed whereby the Appellant agreed to sell the suit premises to the Respondent Nos.1 2 and their mother.
On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated.
1 and 2 respectively, were permitted to be impleaded as parties in the suit on the premise that they were numberinees in respect of half of their share in the agreement.
200 per katha.
In terms of Order XLVII Rule 4, the Court may either reject or grant an application for review.
200 per katha, that decree became final.
In the said suit, the Respondent Nos.1 and 2 herein filed an application for injunction restraining the Appellant herein from alienating the suit premises.
The said suit for specific performance of companytract was dismissed by the 9th Senior Civil Judge, Alipore, in terms of Order XII Rule 6 of CPC purported to be on admission on the part of the Respondent Nos.1 and 2.
By an order dated 18.10.2000, this Court while dismissing the application for grant of special leave recorded an undertaking given on behalf of the Appellant herein number to execute the decree passed in Title Suit No.412 of 1977 till the decision of Title Suit No.49 of 1990.
An appeal during the pendency of the review petition was, therefore, number maintainable.
As the Appellant herein filed an application marked as CO No.3229 of 2004 before the Calcutta High Court for direction upon the Respondents herein for issuance of such a writ but by reason of the impugned order dated 1410.2004, the said application was dismissed.
The respondent made numberattempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.
The said decree although was appealable but in view of the order dated 15.7.2002, the said decree in its entirety ceased to operate.
It is number in dispute that the said suit was decreed and the matter ultimately came up before this Court in Civil Appeal No.2249 of 1999.
Both these appeals being inter related were taken up for hearing together and are being disposed of by this companymon judgment.
The father of the Respondent Nos.1 and 2, Manick Chandra Das, since deceased was inducted in the said tenancy on 1.4.1959 for a tenure of 15 years.
The Appellant filed her written objection specifying the grounds of cancellation thereof.
The Title Suit is pending decision only for a limited purpose, namely, for refund of the earnest money.
49 of 1990 having been revived, the undertaking would also revive.
OF 2005 Arising out of S.L.P. Civil No.
Since numberappeal was preferred by the respondent against the decree passed on August 18, 1961, awarding companypensation for the land at the rate of Rs.
39 of 2005 B. SINHA, J .
Meanwhile, the Respondent Nos.3 and 4 herein, who are wives of Respondent Nos.
Arising out of S.L.P. Civil number26502 of 2004 CIVIL APPEAL NO.
Leave granted.
1 and 2 and prayed for stay of the execution, but the Executing Court did number grant any interim stay.
BACKGROUND FACT The Appellant is the owner of a premise situate at 77/1, Hazra Road, in the town of Kolkata.
