N.G. Chaudhuri, J.
1. Present petition under Article 227 of the Constitution of India read with Section 115 of the Civil P. C. filed by the decree holder-petitioners is directed against order No. 80 dated 16-6-1981 passed by the subordinate Judge, Asansol in Title Execution Case No. 9 of 1976 of that Court. By the aforesaid order the learned subordinate Judge has allowed the opposite party's petition under Order 21, Rule 16, C. P. C. holding that he was entitledto be added as a co-decree holder. The subordinate Judge has further found that the decree holder prima facie appear to have lost right, title and interest in respect of eight annas share in the suit property which they had sold to one Gouri Dutt Sharma from whom the opposite party purchased the said share.
2. For a proper appreciation of the contentions raised before us it is necessary to state the antecedent facts in some details. Hirannabhusan Mukherjee, the predecessor in interest of the decree holders leased out the property 'New Empire Cinema' in the town of Asansol to Kshitish Chandra Ghosh at a monthly rental of Rs. 450/-. In May 1947 Hiranna Bbusan instituted Title Suit No. 11 of 1947 in the Court of subordinate Judge, Asansol, for eviction of the lessee and the suit was decreed on contest on 12-11-1953. On an application for stay of execution of the decree having been made the learned subordinate Judge by order No. 156 dated 18-11-1953 ordered as follows:-- 'I order that the execution may be stayed upon the judgment-debtor furnishing security to the extent of Rs. 50,000/- for due performance of the decree as may ultimately be binding upon him. Judgment debtor to take immediate step in the matter'. The respondent No. 1 Dilip Kumar Ghosh who is alleged to be one of the nephews of the judgment debtor furnished the security ordered by the Court by executing a bond on 1-12-1953. The judgment-debtor filed F. A. No. 67 of 1954 in this Court against the judgment and decree passed by the learned subordinate Judge. By a judgment dated 13-9-1956 this Court moified the decree passed by the trial Court in respect of C. S. Plot No. 5820 (the Cinema House referred to comprised two other plots also namely C. S. Plots Nos. 5818 and 5840). By the said judgment the judgment debtor was found to have been given the superior landlords' right in respect of the aforesaid plot. It was further found that one Dinendra was the benamdar of the judgment debtor, but the judgment debtor was in actual possession of the suit properties and was running the business therein. Putting the decree in execution the decree holders went to take possession of the properties along with the Nazir of the Court and the Police party, but they were resisted. The opposite parties constituted M/s. Kinama Industries Pvt. Ltd. and took part in offering resistance to the decree. An application under Order 21, Rule 97, C. P. C. was filed by the decree holders and their prayer was allowed on 7-6-1956. KinamaIndustries Pvt. Ltd. obtained a Rule namely C. R. 1736 of 1956 and the order passed in favour of the decree holders in Order 21, Rule 97 proceedings was set aside and the decree holder was directed to file a fresh suit in order to get possession of the suit property. The decree holder accordingly filed Title Suit No. 44 of 1957 under Order 21, Rule 103, Civil P. C. in the Court of the Subordinate Judge, Asansol on 2-9-1957 impleading Kinama Industries Pvt Ltd. and judgment debtors as defendants. It is alleged that the respondent no. I Dilip Ghosh was doing everything on behalf of the defendants in the said suit as he himself was a major share holder in Kinama Industries Pvt. Ltd. F. A. No. 67 of 1954 earlier mentioned having been disposed of the judgment debtors on 5-12-1958 obtained leave of appeal to the Supreme Court under Article 133 of the Constitution of India. The Supreme Court by judgment dated 9-12-1964 is reported to have affirmed the order of the High Court in S. C. A. No. 74 of 1962. The decree holders fell into financial stringency because of the litigations aforesaid and entered into an agreement for financial assistance with one Gouri Dutt Sharma by a deed dated 7-3-1960, in the matter of carrying of Cinema business in the aforesaid Cinema House after recovery of possession thereof in execution of 'the decree passed in their favour. Eventually the decree holders put the decree in execution in Title Execution Case No. 9 of 1976 in the Court of subordinate Judge Asansol on 20-2-1976. It appears that respondent No. 1 Dilip Ghosh obtained a deed of assignment from, the said Gouri Dutt Sharma on 19-8-1975. Initially the Kinama Industries Pvt. Ltd. filed objection to the execution case No. T. Ex. 9 of 1976 on 30-10-1976 to which the decree holders filed objections on 23-11-1976. Thereafter on 13-11-1979 Dilip Ghosh filed an application under Order 21, Rule 16 read with Section 146, Civil P. C. By the order impugned before us the learned subordinate Judge allowed the said petition of Dilip Ghosh.
3. Feeling aggrieved with the order of the learned subordinate Judge the decree holders have come up before us. It is pointed out first of all that the order of the learned subordinate Judge does not appear to be based on a firm finding arrived at after careful consideration of the contentions of the decree holder. Mr. Ranjit Banerjee, the learned advocate for the petitioners contends that respondent No. 1 Dilip Ghosh having executed the security bond on 1-11-1953 to secure compliance of the decree passedagainst the judgment debtors in Title Suit No. 11 of 1947 became a representative of the judgment debtor for all practical purposes and could not apply under Order 21, Rule 16, C. P. C. His further contention is that the deed dated 7-3-1960 executed by the present decree-holders in favour of Gouri Dutt Sharma cannot be considered as a deed assigning the decree passed in favour of the decree holder to Gouri Dutt Sharma and as such on the basis of the transfer obtained from Gouri Dutt Sharma, Dilip Kumar Ghosh could not apply under Order 21, Rule 16, C. P. C. He contends that the deed of assignment dated 7-3-1960 was a sham paper document and was never acted upon. It is argued that the decree holders pleaded in the Court below that no valid and effective transfer as alleged by Dilip Ghosh was effected. In this connection it is pointed out that Gouri Dutt Sharma never asserted any right on the basis of the alleged assignment dated 7-3-1960 although a long time elapsed thereafter. It is emphasized that at best the said document dated 7-3-1960 indicated some sort of financial arrangement agreed upon by the parties to the document in the event of a contingency contemplated in the said deed. Mr. Banerjee contends that the sum and substance of the decree holders' contention was that the petitioner under Order 21, Rule 16 was a representative of the judgment debtors in the earlier suit and also in the latter suit. In connection with the latter suit he contends, Dilip Ghosh was intimately conntcted with Kinama Industries Pvt. Ltd. and was actively looking after the suit on behalf of the defendants in that suit. Mr. Banerjee contends that Section 47 of the C. P. C. requires that questions as to whether a party is a representative of the decree holder or judgment debtor should be decided by the Court executing the decree. He emphasizes that in this case a decision on merits on the petition filed by Dilip Ghosh was surely to affect the execution of the decree vitally. He eventually submits that the learned subordinate Judge was absolutely wrong when he disposed of the petition under Order 21 Rule 16 with the observations 'The decree holder has prima facie lost his right, title and interest in respect of eight annas share in the suit property'. Mr. Baneree contends that a prima facie or tentative finding was not sufficient. A firm finding on a consideration of documents and evidence was called for.
4. We have given our anxious consideration to the contentions raised. We are satisfied that the order passed by the learned subordinate Judge on 16-6-1981 upon thepetition under Order 21. Rule 16, C. P. C. was wrong and passed in excess of the jurisdiction of the Court The order should there-fore be set aside.
5. Hence ordered that the present petition be allowed on contest. The order of the learned subordinate Judge impugned herein be set aside and the records be sent down to the Court below with direction to consider in depth and details the contentions raised by the decree holders, if necessary on evidence to be adduced by the parties and to arrive at a firm finding if the petitioner Dilip Ghosh is a representative of the judgment debtor at contended. The learned subordinate Judge may convert the proceedings as one under Section 47, C. P. C. Parties to the petition in this Court are directed to bear the cost of hearing of the petition themselves.
N.C. Mukherji, J.
6. I agree.