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PETITIONER: SMT. SATI RANI SEN

       Vs.

RESPONDENT: M/S. INDIAN STANDARD CASTING COMPANY & ANR.

DATE OF JUDGMENT:       17/03/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel for the parties.      This appeal  by special  leave arises from the order of the learned  single judge of the High court of calcutta made on October  14 1996 in C.O No. 2514/95. The present position appears to  be that  the premises  No.31, Raja  Santosh Road Alipore Calcutta is the subject matter of the suit No. 86/90 on the  file of  the IVth Additional District Judge Alipore. Therein they had claimed that they were duty inducted by 2nd respondent M/S.  metal  box  India  ltd.  as  a  tenant  and therefore they  have the  leasehold right  in the  premisses similarly the  appellant filed suit No 435/90 on the file of the learned  IInd  Munsif,  Alipore  Therein  the  appellant claimed that  M/s metal box India Ltd. is the tenant and the first respondent  has no manner of interest or tenancy right therein as against the appellant. admittedly both  the suits are pending  in suit  No. 86/90  the trail  court passed  an order  on  July  14,  1990  directing  that  status  quo  be maintained and also given ads interim injunction restraining the appellant  from disturbing  the possession  of the first respondent. admittedly  the said order is still in operation While the  proceedings  were  pending  the  appellant  filed another suit  bearing No.66/93  on the  file of  the learned IInd Munsif,  judge wherein the appellant impleaded only M/s metal box  India ltd.  as the  sole defendant  and had an ex parte decree  In execution thereof, the possession was taken on may 23,1995.      The first  respondent viz., Indian standard casting co. filled an  application under  order XXI  Rule 90  read  with section 151  CPC in  suit No.66/93 stating that he is having lawful possession  and cannot  be unlawfully dispossessed in execution of  the decree  dated January  4,1995. Though  the first respondent  filed an  application  under  Order  XXXIX Rules 1  and 2  CPC but  in substance  it is one under Order XLIV, CPC for restitution of the possession by virtue of the order of  the status  quo granted on July 14, 1990. The said application was ordered which is the subject  matter in this appeal.      Though Shri  Raju Ramchandra,  learned  senior  counsel

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appearing for  the appellant  contends that the appellant in execution of  the decreed  dated  January  1  1995  in  suit No.66/93 came  to have  lawful possession of the property in his right  as a  decree holder and owner of the property the civil  court   was  not   right  in  directing  restitution. Palpably, the argument is palatable and seemingly acceptable but in  view of  the fact situation the contention stands no merit. Obviously,  so long  as the  status quo  order and ad interim injunction maintaining the possessing of M/s. Indian Standard Casting  Company continue to subsits, the execution of the  decree in  Suit No.66/93  though bcame final without impleading the said respondent is to over reach the order of injunction and  is an abuse of the court it would be obvious that the  appellant being the defendant in suit no.66/90 and having suffered  the order  of status  quo as also adinterim injunction which  is still  subsisting  without  that  order being vacated  or suit being disposed of the appellant could not have the decree in suit No.66/93 executed without taking steps to  have respondent  No.1 Indian  standard casting co. impleaded as  a party-defendant  to the  suit. Since  Indian standard casting  Co., had  already obtained the order which is operating it could not be dispossessed by execution of an ex parte  decree to  which it was not a party. Obviously the appellant wanted  to over reach the order passed in suit no. 86/90 normally  we would  have  directed  the  appellant  to restitute possession  to the  respondent. The  status of the respondent itself is to be decided in its suit unfortunately the respondent  stood dispossesseed  on May  23,1995.  Under these circumstances the question is what would be the proper course In  view of the above factual situation we think that the appellant  should be  appointed as  court receiver under order XL Rule 1 CPC and would obviously be answerable to the court. In the event of any decision against the appellant in the above suits it would be obvious that the appellant shall surrender possession  to M/s.  Indian standards  casting co. otherwise the possession would remain with the appellant the owner of the property .      In view  of  the  fact  that  suit  No.86/90  and  suit No.435/90 and suit no.435/90 are pending in different courts and also  the proceedings  under order  XXI Rule  90 in suit No.66/93 we  are of  the view that all the three proceedings should be  transferred to  one court. accordingly, we direct that suit  No. 435/90  and the application filed under order order XXI  Rule 90  CPC should  be transferred  to the  IVth Additional  judge  alipore  to  be  tried  along  with  suit No.86/90. We  are informed  that the appellant has not filed written statement  so far.  Thirty days’  time from today is granted to  the appellant  to file the written statement. If the written  statement is  not  filed  the  appellant  would forfeit his  right to  file the  written  statement  .  IVth Additional Judge is directed to dispose of both the suits as well as  application under  XXI Rule 90 CPS as expeditiously as possible  within a  period of six months from the date of the receipt of this order.      The appeals is accordingly disposed of. No costs.