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Civil Revision No. 779 of 1952, decided on 27th February, 1953, against the judgment and decree dated the 24th April, 1952, passed by the First Munsif, Chittagong, in Miscellaneous Case No. 22 of 1952.

S. 115, Order XXI rr. 98 and 103‑Application.

Held, that it is beyond the scope of an application under. Order XXI Rule 98 and the jurisdiction of the Court to enquire into the question of the title of the parties to the suit in which the decree under execution was obtained. The executing Court has got no right to go behind the decree.

Held further, that the decision of a Court under O. XXI. Rule 98 can .be revised under section 115 of the Civil Procedure Code. The Court is not bound to interfere under section 115 and the fact that there is an alternative remedy may influence the Court in the exercise of its discretion, but there is nothing in .the section itself to bar the revision of an order passed under Order XXI, Rule' 98 of the Code of Civil Procedure. It is one thing to say that the Court should not exercise its power, under section 115, Civil Procedure Code, and 'it is a different thing that it cannot interfere under that section.

Dwipal Chand Bardhan v. Sm. Jiban Debi and others 35 C W N 286, Alice Maude Hussain and another v. J. C. Galstaun and others 31 C W N 615, Baij Nath Prasad v. Khedu Ram and others A I R 1933 All. 959, Naraindas Idanmal v. Pevandbai Gokaldas A I R 1935 Sind 129, Bachu Lal v. Ram Din A I R 1939 All. 117, Ram Charan Das v. Hira Nandi A I R 1945 Lah. 298 (F B)‑and Tulsi Charan Das v. Subal Chandra Das and another 56 C W N 39 ref.

Nirmal Chandia Nandi for Petitioner.

A. F. M. Mesbahuddin for Opposite Parties.

‑This is a Rule obtained by the peti tioner for revising the order passed by the First Munsif, Sadar, on an application filed by the petitioner under Order XXI, Rule 98 of the Code of Civil Procedure.

The petitioner obtained a contested decree for ejectment against the opposite party No. 1 in Other Suit No. 213 of 1948. In execution of that decree, a process‑server went to deliver possession of the disputed holding to the petitioner under Order XXI, Rule 35 of the Code of Civil Procedure on the 26th January, 1952. The opposite parties Nos. 2 to 7 who were in actual possession of the holding by this time, resisted the delivery of possession.

The petitioner's case is that these opposite parities Nos. 2 to 7 are men of the opposite party No. 1 and the resistence was caused at his instigation and the opposite party No. 1 is creating all the troubles in order to harass the petitioner and the opposite parties Nos. 2 to 7 are helping the latter. It is alleged that the opposite parties Nos. 2 to 7 have no right to resist the delivery of possession and they have also no right to possess the decretal holding. Therefore, the petitioner filed an application on those grounds under Order XXI, Rule 98 of the Code of Civil Procedure for relief. The application was opposed by the opposite party No. 4 contending inter alia that he did not claim any interest in the decretal holding through opposite party No. 1 and as such the decree was not executabe against him and he was possess ing the holding on account of a lease from Hem Chandra Choudhury, brother of the petitioner, at a rental of Rs. 150 from the first of December, 1948, and he had to pay Rs. 14,000 as a Selami and out of this Rs. 14,000, Rs. 5,000 was paid to the then occupant the defendant No. 1 as a solatium and Rs. 9,000 to Hem Chandra Choudhury as advance rent. His further case is that the opposite parties Nos. 2, 3, 5 and 6 are in ‑possession as attached with him and they are not necessary parties in the case. Therefore the contention of the opposite parties was that he was occupying the holding as a bona fide tenant under Hem Chandra Choudhury with effect from the 1st December, 1948, and the petitioner was not entitled to any relief under Order XXI, Rule 98 of the Code of Civil Procedure.

The Munsif, First Court, Sadar, Chittagong, dismissed the application of the petitioner holding that resistance put by the opposite party No. 4 was with just cause and it was not at the instigation of opposite party No. 1 or on behalf of the latter and further held that opposite party No. 4 was claiming in good faith to have the right to be in possession of the disputed holding on his own account: Against this decision the petitioner obtained this Rule.

The learned Advocate for the petitioner, Mr Nandi contends that the order of the trial Court dismissing the application of the petitioner is illegal and as it is not based on any evidence showing that opposite party No. 4 occupying the holding claiming bona fide title and the resistence was not put by the opposite parties Nos. 2 to 7 at the insti gation of the opposite party No. 1.

Mr. Mesbahuddin, the learned Advocate for the opposite parties raised a preliminary objection saying that in view of the provision of Rule 103 of Order XXI providing relief by way of a suit, no revision lies against the order passed by the Munsif under Order XXI, Rule 98 of the Code of Civil Procedure and the High Court generally does not interfere under section 115 of the Code of Civil Procedure.

It appears from the record that the petitioner filed the Other Suit No. 213 of 1948 for an ejectment of his tenant, the opposite party No. 1 from the disputed holding on the 30th December, 1948. He obtained a decree in that suit on the 24th November 1950. The petitioner's case is that the opposite parties Nos. 2 to 7 entered into the holding in the month of August, 1949, that is, during the pendency of this suit. The opposite party No. 4 alleged that he took lease from the petitioner's brother Hem Chandra Choudhury on the 30th November, 1948, to take effect from the 1st December, 1948, The process‑server went to give delivery of possession on the 26th January, 1952, which was resisted by the opposite parties Nos. 2 to 7. It also appears from the record that Hem Chandra choudury, brother of the petitioner, is a Professor at Joypur Medical College though he happens to be resident of village Sultanpur, P. S. Rouzan, District Chittagong. There is no iota of evidence in the record to show Niha that the opposite party No. 4 obtained a lease from Hem Behar Chandra Choudhury and paid Rs. 14,000 to him including Rs. 5,000 paid to the then occupant as a solatium except his uncorroborated testimony. It is difficult to believe that Hem Chandra Choudhury put him into possession of the disputed holding which was admittedly in possession of the opposite party No. 1 at the time of the alleged lease. The trial Court in its judgment found that there was no corrobor ative evidence in support of the case of the opposite party No. 4. Inspite of this finding, the trial Court has come to the conclusion that the opposite party No. 4 was claiming in good faith to have the right to be in possession of the disputed holding on his own account. I am not only unable to agree with the trial Court but also I am surprised to see bow the trial Court has come to this conclusion in the absence of any evidence. In view of the facts and circum stances of the case, and in the absence of any evidence of lease from Hem Chandra and payment of such big amount to him it cannot but be held that during the pendency of the ejectment suit the opposite party No. 1 in collusion with opposite parties Nos. 2 to 7 relinquished possession in their favour taking some money from them in order to harass the petitioner and to frustrate the decree that might be passed against him.

Trial Court not only has come to the finding that opposite party No. 4 was a bona fide claimant on his own account but also incidentally referred to the question of title of the plaintiff in order to support the case of the opposite party and observed that the plaintiff had practised fraud in obtaining the decree in Other Suit No. 213 of 1948 by giving address of Hem Chandra Choudhury, his brother, a pro forma defendant in that suit not at Joypur but at his native village and also observed that the case of amicable arrangement between the brothers leaving the property to the petitioner fell to the ground because of the statement of the petitioner that Hem Chandra Choudhury also got landed properties at Chittagong. In an application under Order XXI, Rule 98 it is beyond its scope and the jurisdiction of the Court to decide the question of title between the parties to the suit and the trial Court in order to support the case of the opposite party No. 4 has gone to the length of finding defect in the title of the plaintiff inspite of the fact that the petitioner obtained a decree for ejectment against the opposite party No. 1 implead ing his brother Hem Chandra Choudhary as pro forma defendant. It is not even a case of any of the opposite parties that the decree was obtained by fraud. Whether there is a fraud or not, the executing Court has got no right to go behind the decree. In, these circumstances, it cannot beheld that there is no material irregularity and illegality in the decision of the trial Court and the decision must be set aside.

As regards the preliminary objection of the learned Advocate for the opposite parties, I am unable to accept the contention that the decision of the Court On all application, under Order XXI, Rule 98 cannot be revised under section 115 of the Code of Civil Procedure.

There is nothing in section 115 of the Code of Civil Procedure which bars the right of revision There are cases in Calcutta High Court where the petition for revision of orders made under Order XXI, Rule 58 of the Code of Civil Procedure was revised inspite of the provision in Rule 63 of Order XXI, Civil P. C. which provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right, which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. It may be true that Court is not bound to interfere under section 115 of the Code of Civil Procedure. It has a discre tion and the fact that there is an alternative remedy may influence a Court in the exercise of its discretion it is one thing to say that the Court should not exercise its direction in favour of the petitioner; it is entirely a different thing to say that it cannot. In the present case, the manner in which the Munsif has dealt with the question arose before him for decision is not only exceedingly unsatisfactory but is manifestly perverse. In view of the gross and material irregularity committed by him and the gross perversity shown by him in dismissing the case of the petitioner, I have no hesitation in setting aside his order in the exercise of my revisional jurisdiction.

The learned Advocate for the opposite party in support of his contention that no revision lies relied on the case of Dwipal Chand Bardhan v. Sm. Jiban Debi and others (35CWN286); the case of Alice Maude Hussain anal another v. J. C. Galstaun and others (31CWN615); the case of Baij Nath Prasad v. Khedu Ram and others (A I R 1933 All. 959) and the case of Naraindas Idanmal v. Pevanbai Gokaldas (A I R 1935 Sind 129). In the cases reported in 35 C W N 286; and 31 C W N 615, nowhere their Lordships said that no, revision lay but observed that there was another remedy open their Lordships declined to interfere under section 115. But the last mentioned two cases, relied on by Mr. Mesbahuddin, the learned Advocate for the opposite party, went up the length of saying that the rule (that is Rule 103) was intended to deprive the claimant of his remedy by way of an appeal or application for revision to a higher Court. Under what authority, with due respect to the learned judges in those cases, they came to this conclusion it is difficult for me to ascertain. Section 115 does not prevent any revision on the ground that there is another remedy. Rule 103 contains the words "subject to the result of such suit, (if any)," the order passed under Rules 98, 99 acid 101 will be occlusive. The word "conclusive" means no appeal lies but it does not mean that High Court cannot revise the order of the Court passed under Rules 98, 99 and 101 of the Code of Civil Procedure. In support of the view taken above, reference may be made in the case of Bachu Lai v, Ram Din (A I R 1939 All. 117) the case of Ram Charan Das v. Hira Nandi (A I R 1945 Lah. 298 (F B)) and the case of Tulsi Charan Das v. Subal Chandra Das and another (56 C W N 39). In this view of the matter, I am unable to accept the conten tion of the learned Advocate for the opposite party as sound.

The result, therefore, is that this Rule is made absolute with costs and the order of the Munsif is set aside and I direct that the petitioner be forthwith put into possession as prayed for in the application under Order XXI, Rule 98 of the Code of Civil Procedure.

K. B. A./M. S. Rule made absolute.

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