SMT. SATI RANI SENversusM/S. INDIAN STANDARD CASTING CO. AND ANR.

A                            SMT. SATI RANI SEN
                                v.
             MIS INDIAN STANDARD CASTING CO. AND ANR.

                                 MARCH 17, 1997.

B               [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

          Code of Civil Procedure, 1908:

          Order 21, Rule 90 read with s. 151, Order XXXIX, Rules 1 and 2-0rder
C XLW, Order XL Rule I-Cross suits by sub-tenant and landlord for declara-
  tion of their respective rights-Order by trial court maintaining status quo and
  giving ad lllterim injunction restraining landlord from disturbing possession
  of sub-tenant-Pending suits landlord filed in a different court another suit
  against principal tenant only in respect of self same property and obtained an
  ex parte decree-bl execution proceedings the sub-tenant filed an application
D under Order XX! Rule 90 r/w s. 151 CPC-Later, sub-tenant jileianother
  application under Order XXXIX Rules 1 and 2-Application allowed-Held,
  though the sub-tenant filed a11 application under Order XXXIX Rules 1 and
  2 i11 substance it is one under Order XLIV CPC for restitution of the
  possession by virtue of the order of status quo granted in earlier suit-So long
E as the status quo order and ad interim injunction in the earlier suit maintain-
  i11g the possession of the sub-tenant continue to subsist, the execution of
  decree in later suit though became final without impleading the sub-tenant is
  to over reach the order of injunction and is an abuse of process of the
   Court-However, since the sub-tenant stood dispossessed, the landlord should
  be appointed as Court receiver under Order XL Rule 1 and in the event of
F any decision against the landlord, the sub-tenant would be put into posses-
  sion-All the cases would be transferred to one Court, i.e. to the Court of IV
  Addi. Judge Alipore.

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2545 of
G 1997.
          From the Judgment and Order dated 14.10.96 of the Calcutta High
     Court in C.O. No. 2514 of 1995.

          Raju Ramachandran, Rana, Ms. S. Mukherjee and Goodwill ln-
H    deevar for the Appellant.
                                  1176
                   S.R. SEN v. INDIAN STANDARD CASTING CO.                    1177

          Vijay Hansaria, Sunil K. Jain, J.K. Bhatia. and S. Mukherjee for the         A
     Respondents.

-          The following Order of the Court was delivered :

           I,eave granted. We have heard learned counsel for the parties.
                                                                                       B
            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 ohhe
     suit. Mis Indian Standard Casting Company filed suit No. 86/90 on the file        C
     of the IVth Additional District Judge, Alipore. Therein, they had claimed
     that they were duly inducted by 2nd respondent, M/s. Metal Box India Ltd.
     as a tenant and, therefore, they have the leasehold right in the premises.
     Similarly, the appellant filed suit No. 435/90 on the file of the learned Hri.d
     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 of          D
     tenancy right therein as against the appellant. Admittedly, both the suits
     are pending. In Suit No. 86/90, the trial Coilrt passed on order on July 14,
     1990 directing that status quo be maintained and also given ad interim
     injunction restraining the appellant from disturbing the possession of the
     first respondent. Admittedly; the said order is still in operation. While the     E
     proceedings were pending, the appellant filed another suit bearing No.
     66/93 on the file of the learned Ilnd Munsif Judge wherein the appellant
     impleaded only M/s. Metal Box India Ltd. as the sole defendant and had
     an ex palte decree. In execution thereof, the possession was taken on May
     23, 1995.
                                                                                       F
             The first respondent, viz. Indian Standard Casting Co. filed an ap-
      plication 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 unlaw-
      fully dispossessed in execution of the decree dated January 4, 1995. Though
      the first respondent filed an application under Order XXXIX, Rules 1 and G
      2, CPC but in substance, it is one under Order XLIV, CPC for restitution
      of possession by virtue of the order of the status quo granted on July 14,
    . 1990. The said application was ordered which· is the subjected matter in
      this appeal.

           Though Shri Raju Ramchandra, learned senior .counsel appearing for H
    1178                  SUPRElV~E COURT REPORTS                  (1997J 2 S.C.R. "(

A the appellant, contends that the appellant in execution of the d.:cree 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
B ad interim injunction maintaining the possession of M/s. Indian Standard
  Casting Company continue to subsist, the execution of the decree in Suit
  No. 66/93 though became final without impleading the said respondent is
  to over reach the order of injuction and is an abuse of the process of the
  Court. It would be obvious that the appellant being the defendant in Suit
c No. 86/90 and having suffered the order of Status quo as also ad interim
  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 bringing it to the notice of the Court or without taking
  steps to have respondent No. 1, Indian Standard Casting Co., implcaded
D as a party-defendant to that 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
E suit. Unfortunately, the respondent stood dispossessed 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
F 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 \vith the appellant, the owner of the property.

            In view of the fact that Suit No. 86/90 and Suit No. 435/90 are pending
     in different courts and also the proceedings under Order XXI, Rule 90 in
G    Suit No. 66/93, we are of the view that all the three procee-dings should be
     transferred to one Cou~t. Accordingly, we direct that suit No. 435/90 and
     the application filed under 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 bas not filed written statement so far.
H    Thirty days time from today is granted to the appellant to file the written
r
I
                  S.R. SEN v. INDIAN STANDARD CASTING CO.                   1179

    statement. If the written statement is not filed, the appellant would forfeit   A
    his right to file the written statement. IVth Additional Judge is directed to
    dispose of both the suits as well as application under Order XXI, Rule 90,
    CPC 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.                        B

    R.P.                                                   Appeals disposed of.