SMT. SATI RANI SEN versus M/S. INDIAN STANDARD CASTING CO. AND ANR.

Citation: [1997] 2 S.C.R. 1176 · Decided: 17-03-1997 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Disposed off
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Judgment (excerpt)

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 
F 
be appointed as Court receiver under Order XL Rule 1 and in the event of 
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 
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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. 
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 
B 
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. 
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 
F 
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 a
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