CRP 47/2011 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA Heard Mr. BR Dey, learned Senior counsel, assisted by Mr. P Sen, Advocat e, appearing for the petitioner. Also heard Mr. S Dutta, learned counsel appeari ng for the sole respondent. 2. Challenge in this revision petition under Article 227 of the Constitutio n of India is made against the order dated 26.08.2010 passed in Misc. (J) Case N o. 87 of 2010 in Title Execution Case No. 6 of 2010 arising out of Title Suit No . 707 of 2006 whereby and whereunder the learned trial court rejected the petiti on filed under Order 21 Rule 99 read with Section 47 of the Civil Procedure Code (hereinafter referred to as ’the CPC’ in short) holding that there is no scope to initiate fresh enquiry in regard to right, title and interest of the petition er thereby refused to stay the execution of the decree as prayed for. 3. The petitioner, thereafter, filed another petition under Section 114 rea d with Order 47 Rule 1 alongwith Section 151 of the CPC for review of the order dated 26.08.2010 passed in Misc. (J) Case No. 87 of 2010 being Misc. Case No. 11 0 of 2010 arising out of Misc. (J) Case No. 87 of 2010 in Title Execution No. 6 of 2010. The leaned trial court keeping in mind the provision of Order 47 of the CPC vide order dated 27.01.2011 rejected the prayer for review of the order dat ed 27.01.2011 which order is now under challenge before this Court. 4. The pleadings set forth in the application under Order 21 Rule 99 of the CPC is narrated hereunder; The respondent as plaintiff has brought a suit being Title Suit No. 707 of 2006 before the learned Munsiff, Silchar arraying eleven (11) defendants seek ing a decree for ejectment of the defendants from the premises described in the Schedule of the plaint, Khas possession and for realization of arrear rent etc. wherein the present petitioner was not arrayed as party defendant. Therefore the petitioner during the pendency of the suit filed a petition under Order 1 Rule 10(2) of the CPC for impleading him as third party defendant in the suit. The tr ial court after hearing the parties rejected the petition holding that the petit ioner is not a necessary party. Being aggrieved, the matter was taken on the fil e of this Court being CRP No. 170 of 2009 and this court also rejected the petit ioner’s prayer to implead him as defendant vide order dated 14.09.2009 affirming the order passed by the learned trial Court. The suit filed by the respondent herein was partly decreed on 23.12.2009 with costs. Thereafter the said decree was put into execution being Title Execu tion Case No. 6 of 2010 wherein the petitioner filed a Misc. Case being Misc. (J ) Case NO. 87 of 2010. The averments made in the Misc. Case filed under Order 21 Rule 99 of the CPC in short is that the respondent herein in Title Suit No. 707 of 2006 claimed to be the owner of the decreetal property on the basis of deed No. 6085 registered on 10.09.1982 executed by one Sankar Chandra Paul is the mat ter substantially in issue in Title Suit No. 55 of 1986 wherein the plaintiff so ught a decree for cancellation of the said deed being No. 6085 dated 10.09.1982. In the said suit the respondent herein was arrayed as defendant No. 1 and the v endor Shri Rabindra Chandra Paul alias Shri Sankar Chandra Paul was arrayed as p ro forma defendant No. 10. The suit was filed by one Birendra Chandra Paul as so le plaintiff. The validity of the aforesaid deed No. 6085 has not been determine d till date and the same is substantially and materially in issue in the said su it No. 55 of 1986. Therefore claimed that till the Title Suit No. 55 of 1986 is finally determined the execution proceeding may be stayed. It has been further contended that the property sought for execution in T.E. Case No. 6 of 2010, the judgement debtors are not in possession of the prop erty since 07.05.2003. The said property was transferred and delivered completel y by the judgment debtor Shri Swapan Kumar Deb to the petitioner. However, at pa ragraph 8 of the Misc. Case, it has been stated that the property which was give n to him by Swapan Kumar Deb has been transferred in favour of Soumitra Shankar Deb, son of Shri Swapan Kumar Deb on monthly rent. 5. The Court noticed that while rejecting the review petition on perusal of the plaint of Title Suit No. 55 of 1986 it was found that the predecessor of pe titioner Birendra Chandra Paul was arrayed as pro forma defendant no. 8 in that suit and the plaintiff filed that suit for declaration that the suit properties are joint and ejmali of plaintiff and the pro forma defendants and the interest of the predecessor of present petitioner is involved in that suit. But on the de ath of the pro forma defendant No. 8, the plaintiff of that suit filed a petitio n praying to exempt him from substituting the legal heirs of pro forma defendant no. 8 which was allowed. The interest of the petitioner lied in Title Suit No. 55 of 1986 and not in the suit of 707 of 2006 and hence refused to review the or der dated 26.08.2010 which is under challenge before this Court. 6. Earlier to the petition filed under Order 21 Rule 99 of the CPC, the pet itioner has approached the Court vide petition bearing no. 975/10 praying therei n his right, title, and interest over the suit land. Admittedly plaintiff-decree holder filed the suit being Title Suit No. 707/06 for eviction of the defendant s from the suit premises against Ajay Kumar Deb and others, the judgement debtor s, and for recovery of possession. During the pendency of the suit the present p etitioner filed a petition under Order I Rule 10 (2) of the CPC for impleading h im as 3rd party defendant which was rejected by the learned trial Court, against which revision petition before the court was moved being CRP No. 170 of 2009. T his Court also rejected the petition holding that the validity of the sale deed dated 10.09.1982 is not the subject matter in Title Suit No. 707/06 and therefor e the petitioner is not a necessary party. 7. Situated thus, the application under Order 21 Rule 99 read with Section 47 of the CPC has been filed. The learned trial court after hearing the parties and upon perusal of the applications filed under Order 21 Rule 99, 100, 101 and 102 has held that when in the course of execution, the decree holder, for posses sion of property dispossess a person other than the judgement debtor, he may inv oke Rule 99 of Order 21 of the CPC for redressal of his grievances, wherefor aft er full enquiry on determination of all questions as laid down under Rule 101, t he Court shall pass order under Rule 100 either restoring the applicant to posse ssion or dismiss the application as the court seems fit. Further, Rule 101 empow ers the Court to adjudication all questions including question relating to right , title and interest in the property arising between the parties, the 3rd party has an option either to file a fresh suit or come under the aforesaid provisions for determination of his right over the property which is not the case in hand and thus rejected the petition vide impugned order dated 26.08.2010. 8. In the instant case, admittedly, a reading of the pleadings made under O rder 21 Rule 99 of the CPC, it would reveal that the petitioner has already file d Title Suit No. 55 of 1986 against the decree holder for declaration of their r ight, title and interest and the said suit is pending, meaning thereby that the petitioner’s right, title and interest over the suit property has been pending f or adjudication. In such a situation, a petition under Order 21 Rule 99 is not m aintainable and the remedy lies in Title Suit No. 55 of 1986 more so, when the e xecuting court cannot go behind the decree. In such a circumstance there is no s cope to start a fresh enquiry as to the right, title and interest of the petitio ner relating to Title Suit No. 55 of 1986 wherein the suit is pending for adjudi cation. Furthermore, a reading of the application filed under Order 21 Rule 99 w ould show that the petitioner was put into possession exclusively by defendants/ judgment debtors Shri Swapan Kumar Deb of the decretal property on 07.05.2003 wh ereas at paragraph 8 of the application, it is averred that the decreetal proper ty has been given to Soumitra Shankar Deb son of Swapan Kumar Deb on monthly ren tal basis on verbal agreement who was arrayed as party defendant no. 8 in Title Suit No. 707 of 2006. Therefore, in order to maintain a petition under Order 21 Rule 99 of the CPC, the person dispossessed must show his independent possession . It is thus to be established that his possession is not through the judgment d ebtor which would clearly established that the petition under Order 21 Rule 99 o f the CPC is misplaced requiring no interference under jurisdictional facts. 9. Accordingly the revision petition being devoid of any merit, the same is dismissed. No costs. 10. Interim order passed earlier stands vacated.