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Judgment
Om Narayan Rai, J. :
This revisional application is directed against the common order dated June 08, 2026 passed by the learned Civil Judge (Junior Division), 1st Court at Contai, Purba Medinipur in J. Misc. Case No. 116 of 2025 arising out of Title Execution Case No. 02 of 1989 whereby the learned Executing Court has allowed three separate applications – two of which had been filed by the opposite party no.8 and the third by the opposite party nos.1 to 7.
The first application filed by opposite party no.8 was stated to be one under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereafter “the Code”) seeking his addition as a petitioner in the J. Misc. Case No. 116 of 2025. The second one was for permitting him to adopt the case stated in the application under Order XXI Rules 97 to 101 of the Code. The third application that was filed on behalf of the opposite party nos. 1 to 7 was for impounding an agreement for sale that had been sought to be relied on by the opposite parties in the said J. Misc. Case.
The petitioners had instituted Title Suit No. 432 of 1978 inter alia praying for decree for recovery of possession upon eviction of one Sri Sridam Chandra Jana and 11 others. The said suit was decreed by the learned Trial Court on June 29, 1988.
The said decree remained undisturbed through both - the first and the second appellate stages, however, it is yet to bear fruits as Title Execution Case No. 2 of 1989 still remains pending.
Initially, some persons sought to resist the execution of the decree by filing an application under Order XXI Rules 97 to 101 of the Code which was registered as Misc. Case No. 109 of 2009. The said J. Misc. Case was ultimately dismissed as the petitioner of the said J. Misc. Case did not proceed with it.
Subsequently the opposite party nos.1 to 7 filed another application under Order XXI Rules 97 to 101 of the Code which has been registered as J. Misc. Case No. 116 of 2025.
The said J. Misc. Case has been filed contending that the petitioner nos. 1, 3 and 6 and the predecessors-in-interest of the petitioner nos.2, 4 and 5 had executed an agreement for sale of the decreetal property in favour of the “predecessors” of the opposite party nos. 1 to 7 on August 15, 1988 and thereafter handed over possession of the said property to the “predecessors” of the opposite party nos.1 to 7 upon accepting earnest money from them. The said opposite parties claim to be in possession of the said property on the strength of the said agreement for sale.
Upon the said J. Misc. case being filed, the learned Executing Court initially passed an order of stay of the Title Execution Case No. 2 of 1989 on December 11, 2025. The petitioners felt aggrieved by such order of stay and approached this Court by filing C.O. 4430 of 2025.
This Court disposed of the said revisional application by an order dated May 07, 2025 thereby setting aside the said order dated December 11, 2025 and requesting the learned Executing Court to dispose of J. Misc. Case No. 116 of 2026 as expeditiously as possible and prior to the date fixed for the execution case so that the execution case could proceed unhindered thereafter, in accordance with law.
Subsequently, the opposite party no.8 filed an application under Order I Rule 10 of the Code, praying for his addition as a petitioner in the said J. Misc. Case. Simultaneously another application was filed under Section 151 of the Code by the same opposite party seeking leave to adopt the case run in the application under Order XXI Rules 97 to 101 of the Code.
On the other hand, the opposite party nos.1 to 7 filed an application seeking an order for impounding of the sale agreement and assessment of stamp duty required to be paid thereon.
By the order impugned all the three applications have been allowed. Feeling aggrieved thereby, the petitioners have approached this Court by way of the present revisional application.
SUBMISSIONS OF THE PETITIONERS:
Mr. Dutta, learned Advocate appearing for the petitioners submits that the application under Order I Rule 10 of the Code filed by the opposite party no.8 was (is) not maintainable. He submits that prior to this, on January 21, 2026 the said opposite party no. 8 had filed an application for impleadment as a petitioner in J. Misc. case and had withdrawn the same (had not pressed the same) on May 15, 2026 without taking any leave of Court to file another application afresh. He has taken this Court through the written objection filed by the petitioners to the said application to demonstrate their contention that the opposite party no.6 had described himself to be the son of Late Kalipada Roy (i.e. opposite party no.8 – who sought to join the J. Misc. Case of the petitioner). It is submitted that before deciding as to whether the opposite party no.8 is alive or not, the said application filed on his behalf could not have been allowed.
It is further submitted that since the opposite party no.8 could not have been allowed to be added as a party to the J. Misc. Case, therefore the other application filed by him seeking leave to adopt the case stated in the application under Order XXI Rules 97 to 101 of the Code could also not have been allowed.
It is next submitted that the third application filed by the opposite party nos. 1 to 7 impounding the agreement for sale relied on by the opposite party and for assessment of stamp duty thereon should also not have been entertained by the learned Executing Court since the same had been filed only for the purpose of delaying the execution of the decree.
It is submitted that the learned Executing Court must proceed with the execution case expeditiously and dispose of the same forthwith. He relies on the judgment of the Hon’ble Supreme Court in the case of Periyammal (dead) through LRs & Others –vs-V. Rajamani & Another1
SUBMISSIONS OF THE OPPOSITE PARTIES:
Mr. Bhattacharya, learned Advocate appearing for the opposite parties submits that withdrawal of the earlier application under Order I Rule 10 of the Code without leave to file afresh would not bar a second application inasmuch as such a bar is only applicable to withdrawal of a suit under Order XXIII Rule 1(4) of the Code. It is submitted that the bar is not attracted to interlocutory applications filed in a miscellaneous case of the present nature. In support of his submission, he relied on an unreported decision of this Court in the case of Sanjit Dey –vs- Namita Samanta & Others2.
It is further submitted that since the J. Misc. Case is an independent proceeding, the petitioners have no right to object to the addition of the opposite party no.8, more so, since the applicant of such proceeding has no objection to the addition.
It is further submitted that the Court has every power to add any person as a party proceeding, if the presence of such person is necessary for proper adjudication of the matter.
Insofar as impounding is concerned, it has been submitted that the same has rightly been allowed by the learned Executing Court. He submits that even if it is assumed that the addition of the opposite party no. 8 was bad, then also the same would not affect the order impounding the agreement for sale since the order was passed on the application filed by the original applicants of the application under Order XXI Rule 97 to 101 of the Code.
ANALYSIS & DECISION:
Heard learned Advocates appearing for the respective parties and considered the material-on-record.
When the petitioners had approached this Court earlier, this Court had disposed of the revisional application with the following directions :-
“4.Having heard the learned advocates appearing respective parties and having considered the material on record, this Court finds that the learned Trial Court was not at all justified in putting off the Execution Case completely upon the filing of the application under Order 21 Rule 99 to 101 without first considering the merit of the application.
5.We must remember the resounding words of the Hon’ble Supreme Court in the case of T. Arivandandam vs. T. V. Satyapal & Another reported at AIR 1977 SC 2421. The Hon’ble Supreme Court had observed that “An activist Judge is the answer to irresponsible law suits” and that the Court should endeavour to ensure that “bogus litigation” is “shot down at the earliest stage”. Although the said judgment had been rendered in the context of a frivolous suit, yet, there is no reason why the same caution and attention commanded by the Hon’ble Supreme Court to be exercised in suits cannot and should not be applied to applications under Order 21 Rule 97 to 101 of the Code of Civil Procedure, in order to weed out dead wood at the threshold.
6.No reason has been assigned by the learned Executing Court to justify the order of stay of the execution case. The learned Executing Court has after summarising the facts mentioned in the application filed by the opposite parties only mentioned that the opposite parties have made out an arguable case. There is nothing to show why and how the case was arguable. The factual summary does not show anything so arguable that would have justified the stay of the execution case.
7.In such view of the matter, the order dated December 11, 2025, staying the Title Execution case no. 2 of 1989 is set aside.
8.This Court has been informed that June 11, 2026 is the next date fixed for the execution case. In such view of the matter, this Court requests the learned Executing Court being the learned Civil Judge (Junior Division), 1st Court, Contai, Purba Medinipur to dispose of J. Misc. Case No. 116 of 2025 as expeditiously as possible and prior to the date fixed for the execution case so that the execution case can proceed unhindered thereafter, in accordance with law.
9.The learned Court is requested to ensure that in cases like the one at hand, stay is not granted merely for the asking unless a really meritorious case is made out. It is also made clear that the execution case should not be stalled merely due to the pendency of J Misc. Case of 116 of 2025, if no real and meritorious case for stay thereof is made out.”
It is evident from the facts summarised hereinabove that neither the J. Misc. Case nor the execution case has been disposed of as yet. The three applications which had been filed by the opposite parties and which have been allowed by the order impugned have also greatly hindered further progress of the execution proceedings.
It is not in dispute, that the opposite party no.8 had filed an application under Order I Rule 10 of the Code on January 21, 2026 which he withdrew (did not press) on May 15, 2026 without liberty to file afresh. Now while Mr. Dutta says that such an application was not maintainable, Mr. Bhattacharya argues that the same being an interlocutory application the bar of Order XXIII Rule 1(4) of the Code would not be get attracted.
While Mr. Bhattacharya’s submission, prima facie appears to be legally sound in terms of a strict literal reading of the provisions of Order XXIII Rule 1(4) of the Code, yet, ultimately, the same fails to aid the opposite party no.8 in the facts of the present case. While it can be debated that the high threshold of abandonment of claim and waiver applicable to a plaintiff who withdraws his suit without liberty to sue afresh would not be applicable to an interlocutory application filed for addition as a petitioner to an application under Order XXI Rules 97 to 101 of the Code, yet, there is no reason why the public policy of prevention of abuse of judicial process should not bar such an application.
In the present case such bar is attracted with greater force in view of the conduct of the opposite parties. To put the perspective rightly, the pleadings in paragraph (ii) of the earlier application filed by the opposite party no.8 (i.e., Kalipada Roy on January 21, 2026) may be noted: -
“(ii)That it is submitted that the opposite parties no.1 to 3 and predecessor of opposite parties no.4 to 7, namely –Dulal Chand Bera had executed one sale agreement in favour of Sk. Manjur and others including the below mentioned persons. The below mentioned persons have some sorts of interest and possession over the (X) scheduled property of the original application and unfortunately, owing to some typing mistakes, the names of petitioner no.4 Sk. Raju depicted as – Sk. Raju, Son of Lt. Sk. Malu and the petitioner no.6 Surajit Roy depicted as –Surajit Roy, Son of Lt. Kalipada Roy. Such types of mistakes are absolutely unintentional and typographical mistakes.”
Having so pleaded the said opposite party sought to be added as a petitioner to the J. Misc. Case. This application was withdrawn on May 15, 2026 without leave to file afresh as would be evident from the Order No.210 dated May 15, 2026.
Then came the second application seeking addition as petitioner in the J. Misc Case averring thus in paragraph (ii) thereof:
“(ii)That it is submitted that the opposite parties no.1 to 3 and predecessor of opposite parties no.4 to 7, namely –Dulal Chand Bera had executed one sale agreement in favour of Sk. Manjur and others including the below mentioned persons. The below mentioned persons have some sorts of interest and possession over the (X) scheduled property of the original application and as such he is required to be added as plaintiffs/petitioners of this case. This petitioner has no knowledge about the pendency of the case previously and on 04-06-2026 he has come to know about the pendency of the case and as such, he being an absolute necessary party is required to be impleaded as petitioner”.
The underlined statement is blatantly belied by the opposite party no.8’s earlier application. Since the opposite party no.8 had himself filed the earlier application for addition as a petitioner in the same J. Misc Case on January 21, 2026 it could not have been asserted by him about six months later that he had come to know about the pendency of the case only on June 04, 2026.
Upon comparing the other portion of the aforequoted paragraph (ii) of the subsequent application for addition of party, with the earlier version thereof it can be distinctly noticed that the averments regarding the opposite party no.8 having been described as “Late” are missing. It still remains a mystery as to how his son described him as “son of Lt. Kalipada Roy” in the application under Order XXI Rules 97 of the Code as is evident from the earlier application under Order I Rule 10 of the Code filed by Sri Kalipada Roy and how the same disappeared.
Mr. Dutta submits that the expression ‘Late’ in the cause title of the application filed under Order XXI Rule 97 of the Code has been corrected later by way of interpolation in the records. Mr. Bhattacharya refutes such submission and submits that the same is not correct and he relies on the copy of the certified copy of the said application annexed to the revisional application to buttress his submission.
It will be difficult for this Court take a decision on such aspect on this revisional application, but the learned Executing Court would be required to examine the matter to unearth the truth.
However, it is plain that the opposite party no. 8’s application is a clear abuse of the process of law. He cannot be permitted to halt the execution proceedings at his will by making successive applications one after the other without there being any such change in the circumstance or any such accrual of a cause of action that might entitle him to be added as a petitioner to the J. Misc. Case
While it is true that the learned Court has power to add a person as a party to the proceeding if such person is a necessary party, yet it is equally well settled that the same Court also has power to refuse impleadment, if the conduct of such party is not above board and there is gross unexplained delay in making such application. The Court is never compelled to aid an applicant whose conduct is malicious or clandestine. Equity and discretionary remedies will not be given to someone who does not approach the court with clean hands.
In the present case, even if the best case of the opposite parties, (that they got knowledge of the alleged agreement for sale in December 2025) as pleaded in the application under Order 21 Rule 97 to 101 is assumed to be true then also the same would not help the opposite party no.8 in the present case who claims to be a signatory to the agreement for sale. He evidently seeks to resuscitate a dead cause. He neither filed the application under Order XXI Rules 97 to 101 of the Code nor came forward to join the same when his son filed the said application along with others.
The coordinate Bench judgment in the case of Sanjit Dey (supra) cannot aid the opposite parties as the same is clearly turned on its own facts. In the said case the subsequent interlocutory application had been filed on the same day prior to withdrawal of the earlier application. Such is not the case here.
The argument of Mr. Bhattacharya that the petitioners have no right to object to the addition of the opposite party no.8 as a petitioner to the J. Misc. Case is also not acceptable to this Court inasmuch as notwithstanding the independent status of the J. Misc.Case, it is aimed at resisting the execution of the very decree which the petitioners hold. Furthermore, as already indicated hereinabove, the facts of the case are too gory for the opposite party no.8 to sail through on his application for addition of party.
For all the reasons aforesaid this Court cannot resist the conclusion that the said application for the addition of the opposite party no.8 as a petitioner to the J. Misc. Case was made to put a spanner in the wheels of the execution case. The said application should not have been allowed at all. The impugned order calls for interference to that effect.
Since the second application by which the opposite party no.8 sought leave to adopt the case run in the application under Order XXI Rules 97 to 101 of the Code is dependent on the first application. Therefore, the order allowing such application also calls for interference. In view of the aforesaid, the impugned order dated June 08, 2026 is set aside to the extent the same allows the aforesaid two applications.
Insofar as the third application for impounding the agreement for sale is concerned, it is well settled that it is the duty of the Court to impound a document exigible to stamp duty if the same is unstamped or insufficiently stamped in accordance with the provisions of Sections 33 of the Indian Stamp Act, 1899 inasmuch as, the same are aimed at safeguarding and replenishment of public revenue. In such connection the observations made by the Hon’ble Supreme Court in the case of G.M. Shahul Hameed –vs- Jayanthi R. Hegde3, albeit in the context of Karnataka Stamp Act, 1957, may be noted:-
“30.We may not turn a blind eye to the fact that the Revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like Section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the State. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”
The legal principles enunciated in the said judgement apply with equal force to the relevant provisions of the Indian Stamp Act, 1899, as well which are applicable to the State of West Bengal. In such view of the matter, the order directing the impounding of the agreement for sale does not call for any interference.
However, the same by itself should not lead to the stalling of the petitioners’ execution case. While disposing of C.O. 4430 of 2025 filed by the petitioners earlier, this Court had, by the order dated May 07, 2026, requested the learned Executing Court to ensure that stay on the execution is not granted merely for the asking unless a really meritorious case is made out. It is noted that while no stay on the execution case has been granted, yet, it is being postponed in view of the pendency of the J. Misc. Case which is operating as a deemed stay – a situation which should be cautiously avoided.
In the case at hand, the learned Executing Court has directed an authenticated copy of the agreement for sale to be sent to the Collector for the purpose of assessing the stamp duty requited to be paid by the opposite party nos. 1 to 7. If the Collector does not send the assessment report promptly, the same should not be a ground for the learned Executing Court to halt the execution case. However, it will be open to the opposite party nos. 1 to 7 to request the learned Executing Court itself to assess the stamp duty and if the said opposite parties pay the same, their J. Misc. Case can be expedited and heard. In such connection, useful reference can be made to the following observations of this Court in the case of Om Prakash Gupta vs. Saraswati Shaw4 :-
“12.If the original document is sent to the Collector in terms of Section 38(2), the Collector will follow the procedure provided in Section 40. According to such provision, if the original document is sent to the Collector under Section 38(2), he is required to come to a conclusion about the duty payable and the penalty to be imposed. After collecting the duty and penalty, if any, it is his duty to send back the original document to the Court or the person who sent the document to the Collector on the prayer of the party.
13.In a case where the Court or person impounding the document refers the matter to the Collector in terms of Section 38(1) of the Act the procedure is different. In such a case, the original document is retained by the impounding authority and only an authenticated copy and the amount collected as duty and penalty are sent to the Collector. The Collector, in such type of a case, has two courses open to him. The first one is provided in Section 39 according to which he can refund the penalty in part or as a whole as mentioned therein. The other course is provided in Section 61 of the Act. That section authorises the Collector to apply to the higher Court mentioned therein disputing the decision of the Court if the Collector is of the opinion that the duty and the penalty collected by the Court is not in accordance with law and that the Court has collected a lesser amount than what is payable. In such a case, the higher Court will decide the question and send its decision to the Collector for realization of the excess amount, if found payable.
14.It is therefore clear that a Court cannot force a party, producing a document, to pay the duty and penalty assessed by it and to have the document admitted in evidence. It is for the party to elect whether it will accept the assessment of the Court and will get the document admitted in evidence or to apply to the Court to send the original document under Section 38; but if a party decides to apply for sending the document in terms of Section 38(2) of the Act, it cannot, at the same time, ask the Court to stay the suit pending the decision by the Collector under Section 40.”
It is therefore clarified that the Execution Case should not be stayed awaiting the Collector’s report or the payment of stamp duty by the said opposite parties. The learned Executing Court is requested to respectfully defer to the mandate of the Hon’ble Supreme Court in the case Periyammal (supra) cited by Mr. Dutta and conclude the execution case as expeditiously as possible, preferably within a month from the next date fixed.
With the aforesaid observations, C.O. 2086 of 2026 stands disposed of. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.