Sri Biman Bose vs Concept Apartments Private Limited

The judgment-debtor in an eviction suit has preferred the instant revisional application against an order rejecting the application of the judgment-debtor

under Section 47 of the Code of Civil Procedure.

The relevant facts, in a nutshell, are as follows:

A suit was filed by the vendor of the present opposite party in the year 1980, for eviction of the judgment-debtor/petitioner in respect of a top floor

(third floor) flat at premises no. 1, Allenby Road, Kolkata, together with appurtenances attached thereto. During pendency of the suit, the plaint was

amended, thereby altering the description of the suit property in the schedule, which, after amendment, comprised of the entire top floor flat including

one “servant room of low height upon a garage at the ground floor†of the said premises. Subsequently the suit was dismissed on March 30, 1996.

A title appeal was preferred against such dismissal by the vendor of the present opposite party. During pendency of the said appeal, the opposite party

purchased the third floor flat, with appurtenances, on November 18, 1998.

Ultimately the appeal was dismissed on December 20, 1999. A second appeal was preferred against such dismissal. During pendency of the second

appeal, the present opposite party was impleaded therein on the strength of the purchase dated November 18, 1998. Such impleadment took place on

June 15, 2004. On August 9, 2004, a deed of rectification/clarification was executed by the vendor of the present opposite party, clarifying that the

property transferred to the present opposite party included the servant room at low height upon a garage (mezzanine) at the ground floor of the suit

premises, apart from the entire top floor flat.

Ultimately the second appeal was allowed on March 18, 2014, thereby setting aside the decisions of the courts below and passing an eviction decree

against the present petitioner. Learned counsel for the petitioner submits that the executing court, while dismissing the application under Section 47 of

the Code of Civil Procedure, proceeded on the premise that the initial description of the suit property included the mezzanine floor garage.

Learned counsel for the petitioner argues that such an interpretation is not borne out by the records, since originally the suit was filed only in respect of

the top floor flat and appurtenances and, despite an amendment including the mezzanine floor room having been effected during the pendency of the

suit, the original purchase deed did not cover the said room at the mezzanine floor.

As such, it is argued, the decree passed by the trial court and the first appellate court could not be faulted at least as regards the mezzanine floor room

was concerned, regarding which no contention could be raised in the suit, since the opposite party had no title thereto prior to presentation of the

second appeal.

In controverting such arguments, learned counsel for the opposite party submits that the executing court was correct in coming to the finding, in the

impugned order, that the initial suit property included the room on the mezzanine floor, on the further observation that the effect of the rectification

took place from the date of execution of the original deed of conveyance.

Upon hearing both sides, it appears that although there might have been some irregularities in the original plaint description of the suit property, by

virtue of amendment, a clarification was introduced by way of including the mezzanine floor room (garage) within the compass of the suit. The

executing court was correct in holding that the rectification deed, although much subsequent to the decisions of the trial court and the first appellate

court, related the matter back to the date of execution of original sale deed in favour of the present opposite party dated November 18, 1998. By way

of such subsequent rectification deed, no new title was conferred but the parties to the original sale only clarified their position as to the extent of the

actual property sought to be transferred by virtue of the original deed. As such, the transfer in favour of the opposite party had to relate back to

November 18, 1998, that is the date of the original transfer, which was during pendency of the Title Appeal.

As such, there might have been some technical irregularities in the title of the present opposite party in respect of the mezzanine floor room, which

ripened only during pendency of the second appeal. Yet, the order of the executing court was substantially correct inasmuch as the effect of the

rectification deed was concerned, which related back to the date of the original purchase by the original opposite party. As such, the application under

Section 47 of the Code, filed by the present petitioner was rightly rejected by the executing court on proper considerations of the correct legal

yardsticks.

In such view of the matter, C. O. No. 2852 of 2018 is dismissed on contest, without, however, any order as to costs. Urgent certified website copies

of this order, if applied for, be made available to the parties upon compliance of requisite formalities.