The Calcutta High Court has reaffirmed that an appellate court hearing an appeal under Order 21 Rule 103 of the Code of Civil Procedure (CPC) lacks the power to modify or alter the original trial court decree, especially where the resisting party fails to demonstrate an independent right distinct from the judgment-debtor. This ruling upholds settled precedent and is binding within West Bengal, with significant guidance for eviction and execution proceedings involving sub-tenants under the West Bengal Premises Tenancy Acts.
Summary
| Category | Data |
|---|---|
| Case Name | C.O./3240/2025 of Deb Narayan Basu Vs Sankari Sett and Ors |
| CNR | WBCHCA0414962025 |
| Date of Registration | 28-08-2025 |
| Decision Date | 02-09-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | HON’BLE JUSTICE PARTHA SARATHI CHATTERJEE |
| Court | Calcutta High Court |
| Precedent Value | Binding within territorial jurisdiction; clarifies execution and eviction jurisprudence |
| Type of Law | Civil Procedure, Tenancy Law, Execution Proceedings |
| Questions of Law |
|
| Ratio Decidendi |
The court reaffirmed that under Order 21 Rule 103 CPC, the appellate court does not have the jurisdiction to modify or alter the original trial court decree. The right of a third party (e.g., alleged sub-tenants or relatives) to resist execution is dependent upon their ability to prove an independent right, title, and interest in the property; failing such proof, and if their claim is derivative from the original tenant, they are bound by the decree. Moreover, the judgment clarified the distinction under the West Bengal Premises Tenancy Acts as to who may be impleaded as a party in eviction suits and the consequence of not issuing the statutory notice. The appellate modification allowing partial exclusion from execution was improper and set aside. |
| Judgments Relied Upon | Legal commentary and precedent regarding the powers under Order 21 Rules 97-103, Section 47 CPC, and the statutory regime under West Bengal Premises Tenancy Acts. |
| Logic / Jurisprudence / Authorities Relied Upon by the Court | The court analyzed statutory changes between the 1956 and 1997 Tenancy Acts; the binding nature of decrees where the resisting party lacks independent rights; and statutory bar on fresh suits under Section 47 CPC. |
| Facts as Summarised by the Court | The original tenant was inducted in 1952; an eviction suit was instituted in 1969 and decreed in 1981; execution commenced in 1987. A relative of the tenant filed a subsequent suit in 1989 alleging sub-tenancy, which led to an ex parte decree. Attempts by successors to set aside that decree failed. The son and daughter of the alleged sub-tenant sought to resist eviction under Order 21 Rule 99 but failed to prove independent right; their appeal resulted in partial exclusion from the execution, which was reversed in this judgment. |
| Citations | None provided in the judgment text. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within the Calcutta High Court’s jurisdiction. |
| Persuasive For | Other High Courts in analogous tenancy and execution proceedings. |
What’s New / What Lawyers Should Note
- Reiterates that appellate courts hearing appeals under Order 21 Rule 103 CPC cannot modify or alter the original decree.
- Clarifies that third parties claiming as sub-tenants or otherwise must establish an independent right to resist execution; derivative claims from the original tenant are not sufficient.
- Stresses that failure to comply with statutory notice requirements under the West Bengal Premises Tenancy Acts precludes sub-tenants from being impleaded or resisting eviction.
- Reinforces that the bar under Section 47 CPC applies, prohibiting separate suits concerning questions that may be determined by the executing court.
- Lawyers representing decree-holders may rely on this judgment to counter obstructionist tactics post-eviction decree.
Summary of Legal Reasoning
- The court examined the protracted history of the eviction suit, highlighting repeated attempts by relatives or associates of the judgment-debtor to frustrate execution.
- It noted the specific statutory requirements regarding sub-tenants under both the 1956 and 1997 West Bengal Premises Tenancy Acts, especially the need to serve notice to qualify as a party with substantive rights.
- The reasoning emphasized that under Order 21 Rules 97, 99, and 101 CPC, only those with established independent rights can resist execution, and the nature of proceedings is akin to a suit with adjudication of right, title, and interest.
- The court clarified that an appeal under Order 21 Rule 103 does not confer any authority to modify or amend the original eviction decree.
- The order of the lower appellate court was set aside due to exceeding the scope of powers under Order 21 Rule 103 and for not properly addressing the absence of independent right in the resisting party.
Arguments by the Parties
Petitioner
- Learned advocate Mr. Roy argued that the lower appellate court erred by excluding the verandah from execution and by permitting only partial eviction.
- Claimed that the appellate order was erroneous in law.
Respondent
- Learned advocate Mr. Banerjee contended that the petitioner (son/daughter of the alleged sub-tenant) had no legal right or standing to resist eviction.
- Argued that all previous attempts by the petitioner to obstruct execution were dismissed by various courts.
- Asserted that Sudhir Kumar (ancestor of petitioner) was not a legal heir of the original tenant and had obtained an ex parte decree via suppression of facts.
- Submitted that no independent right had been proven and the appellate court ignored these salient issues.
Factual Background
The dispute centers on litigation over a tenancy that began in 1952. The landlord initiated eviction proceedings in 1969, resulting in a decree in 1981, which was confirmed on appeal. The decree-holder commenced execution in 1987. In 1989, the cousin of the original tenant filed a separate suit alleging sub-tenancy and secured an ex parte decree for part of the property. The landlord’s successor’s attempts to set aside this ex parte decree were unsuccessful. Subsequently, the children of the alleged sub-tenant filed objections under Order 21 Rule 99 CPC to resist eviction, which the executing court rejected. An appeal led to partial modification of the decree but was ultimately reversed by the High Court, reinstating the original execution order.
Statutory Analysis
- The judgment discussed Section 13(1) of the West Bengal Premises Tenancy Act, 1956, and Section 6(a) of the West Bengal Premises Tenancy Act, 1997, highlighting differences in language regarding sub-tenancy.
- It was clarified that sub-tenants failing to serve statutory notice (Section 16(1) of 1956 Act; Section 26(2) of 1997 Act) are precluded from being impleaded or claiming rights in eviction suits.
- The scope and nature of proceedings under Order 21 Rules 97, 99, 101, and 103 CPC were elucidated, with emphasis on the inability of appellate courts under Rule 103 to modify decrees.
- The bar under Section 47 CPC against separate suits for matters determinable by the executing court was reaffirmed.
Alert Indicators
- Precedent Followed – The court reaffirmed existing principles regarding the limitation on appellate powers under Order 21 Rule 103 CPC and statutory bars in execution proceedings.
Citations
No SCC, AIR, MANU, or neutral citations provided in the judgment text.