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2000 DIGILAW 284 (CAL)

Tapan Kumar Shaw v. Nawab Dutta

2000-06-13

D.P.Sengupta, Tarun Chatterjee

body2000
Judgment T. Chatterjee, J. The appeal and the civil revisional application have been moved against the same judgment and order passed on 28th May, 1999 by Shri A. Barua, Judge, 11th Bench, City Civil Court at Calcutta in two Misc. Cases being Misc. Case No. 2609 of 1997 and Misc. Case No. 2185 of 1997. Misc. Case No. 2609 of 1997 arose out of an application filed by the decree holders Shri Tapan Kr. Shaw and Damodar Shaw under Order 21 Rule 97 of the Code of Civil Procedure read with Rule 208 of the Civil Rules and Orders for grant of police help for execution of the decree for eviction passed against the respondent No. 1 from the premises in question viz. premises No.7 Old Court House Corner, Calcutta. But the real challenge is of the judgment debtor/respondent No.1 Nawab Dutta who came to thwart the execution of the aforesaid decree for eviction by filing an objection under section 47 read with section 151 of the Code of Civil Procedure inviting the executing Court to hold that the decree being a nullity was void and, therefore, not executable. 2. Before we proceed further, we may note that this case reminds us of the Privy Council Dictum that "Trouble starts of the decree holder only after the decree is passed" which shall be squarely applicable to the facts of this case. Therefore, it is necessary for us to state the facts leading to filing of this appeal and the revisional application which are as follows:- 3. Raj Kumar Shaw (deceased) was the predecessor-in-interest of the appellants. Ranjit Kumar Dutta (again deceased) was the predecessor-in-interest of the judgment debtor/respondent. The father of the appellants Raj Kr. Shaw (deceased) inducted the father of the judgment-debtor/respondent as a lease (SIC) by a deed of lease dt.8th October, 1956, in respect of the suit premises. By the deed of lease, the judgment debtor/respondent No.1 was holding as a lessee in respect of the one room, privy and bath room in the ground floor of premises No.7 Old Court House Corner, Calcutta. The lease was initially for 15 years commencing from 1st of October, 1956 and terminating on 30th November, 1971, at a monthly rent of Rs.700/- payable according to English calender month, with an option, on the part of the lessee to renew the same for a further period of 15 years. The lease was initially for 15 years commencing from 1st of October, 1956 and terminating on 30th November, 1971, at a monthly rent of Rs.700/- payable according to English calender month, with an option, on the part of the lessee to renew the same for a further period of 15 years. The lease also provided inter alia, that if the lessee was desirous of having the lease renewed for a further period of 15 years, the lessee shall, at least three calendar months before the expiration of the term thereby granted, give the lessor in writing a notice of his intention to make such renewal of the lease and the lessor shall be bound to renew the same at the cost of the lessee. The decree holders/appellants intimated the judgment debtor/respondent No. 1 on 17th April, 1986, about the expiry of the lease period of 30 years and called upon the judgment debtor/respondent No.1 to deliver up peaceful possession of the premises in question to them on the expiry of the renewed period, that is, on the expiry of 30th September, 1986. On the expiry of 30 years, the appellants filed a suit for eviction against the judgment debtor/respondent No. 1 from the premises in question on the ground that the lease had expired by efflux of time. The suit was decreed by the Trial Court on the ground of expiry of lease. Feeling aggrieved by this judgment and decree of the Trial Court, an appeal was filed before this Court which came to be registered as F.A. No. 149 of 1994. The First Appeal came up for hearing before B.L. Jain and Siddheswar Narayan, JJ. (as their Lordships then were) for final disposal. There was a difference of opinion between the two Hon'ble Judges on the questions dealt with in the said decision, and accordingly the appeal was referred to by the Hon'ble Chief Justice a third Judge, Vidyanand, J. (as His Lordship then was) before whom the appeal was referred by the learned Chief Justice of this Court finally dismissed the appeal of the judgment-debtor/respondent No. 1. Feeling aggrieved by this judgment, the judgment-debtor/respondent No.1 filed a Special Leave Petition before the Supreme Court. Feeling aggrieved by this judgment, the judgment-debtor/respondent No.1 filed a Special Leave Petition before the Supreme Court. The said Special Leave Petition was dismissed by the Supreme Court on 9th of July, 1997, by passing the following order :- "In the facts of this case we are satisfied that the petitioner/tenant has been able to protract the litigation unduly and thereby has derived considerable benefit already. We find no merit in the Special Leave Petition and. therefore it is dismissed. We consider it necessary also to observe that in view of the attitude of the petitioner evident on the facts of this case it is necessary that the concerned court would take all necessary steps for an expeditious execution of the decree passed against the petitioner which has become final. "(Emphasis added) 4. Subsequent to the passing of the aforesaid order of the Supreme Court dismissing the Special Leave Petition, a review application was made by the judgement debtor/respondent No.1 before the Supreme Court. The said review petition was also rejected by the Supreme Court on 1st day of October, 1997 by the following order :- "We have carefully gone through the review petition and the connected papers. We find no merit in the review petition and the same is accordingly dismissed." 5. After the rejection of the Special Leave Petition and the review petition by the Supreme Court in which the Supreme Court had made observation as noted herein earlier, even then the agony of the decree holders/appellants to get back possession of the premises in question did not end. In spite of the aforesaid observation of the Supreme Court directing the Executing Court to execute the decree at an early date, the Executing Court by the impugned judgment had allowed the objection filed by the judgment debtor/ respondent No.1 which, according to us, was a veratious and motivated objection under section 47 of the Code of Civil Procedure. Before we proceed further, at this stage we may also state the admitted facts of this case which have not been stated earlier in this judgment. Before we proceed further, at this stage we may also state the admitted facts of this case which have not been stated earlier in this judgment. The judgment debtor/respondent by filing an objection under section 47 of the Code of Civil Procedure challenged the decree for eviction which was affirmed up to the Hon'ble Supreme Court merely on the ground that the decree holders/appellants had suppressed material facts which constituted fraud on the part of the decree holders/appellants upon the Court. Accordingly, the decree for eviction must be found to be a nullity. The facts stated in the objection under section 47 of the Code of Civil Procedure for the purpose of holding that fraud was committed by the decree holders/appellants by suppressing facts are as follows :- Raj Kr. Shaw during the alleged extended period of lease gifted 50% of the suit property to the present decree holders/appellants and during the pendency of the suit late Raj Kr. Shaw also sold other 50% of the suit premises to the decree holders/appellants and, thereafter the name of Raj Kr. Shaw was deleted. As noted herein earlier, the said suit was ultimately decreed by the learned Judge, 12th Bench of the City Civil Court on 7th June, 1994. The judgment debtor/respondent No.1 further alleged that in the objection under section 47 of the Code of Civil Procedure that from the very inception of the suit for eviction filed on the ground of expiry of lease the decree holders/appellants and late Raj Kr. Shaw suppressed the fact that in respect of 50% of premises No.7 Old Court House Corner, Calcutta late Raj Kr. Shaw executed a deed of trust on 3rd February, 1977, by which he being the settler had no right to revoke the said trust and in the said trust the beneficiaries were Bubun Shaw, Kalyani Shaw and Swapna Shaw which would be evident from the deed of trust. There was a provision for modification reserved by the settler. On the strength of that right of modification, the settler modified the deed of trust and appointed a new trustee viz. Tapan Kr. Shaw, the decree holder/appellant No.1 by a deed executed on 21.8.80. Thereafter by another deed dated 19th February, 1987, late Raj Kr. Shaw alleged to have revoked the deed of trust wherein the beneficiaries Swapna had never put her signature. The plaintiffs viz. late Raj Kr. Tapan Kr. Shaw, the decree holder/appellant No.1 by a deed executed on 21.8.80. Thereafter by another deed dated 19th February, 1987, late Raj Kr. Shaw alleged to have revoked the deed of trust wherein the beneficiaries Swapna had never put her signature. The plaintiffs viz. late Raj Kr. Shaw and the decree holders/appellants totally suppressed this fact of creating a trust when they brought the aforesaid suit for eviction of the judgment debtor/respondent No.1 from the suit premises on the ground of expiry of lease and also at the time of adducing evidence in the suit, at the time of the pendency of the first appeal before this Court and also before the Supreme Court of India. In the objection under section 47 of the Code of Civil Procedure, it was further alleged that the material suppression of fact was that there existed a trust in respect of 50% of the premises in question in respect of which the aforesaid suit for recovery of possession by evicting the lessee on the ground of termination of lease by efflux of time was filed amounted to practising fraud upon the Court and also upon the judgment debtor/respondent No. 1. Therefore, in the objection under section 47 of the Code of Civil Procedure, the judgment debtor/respondent alleged that in view of the facts relating to fraud having been practised by the decree holders/appellants the decree obtained in the suit for eviction which was affirmed by the Hon'ble Supreme Court must be treated to be a nullity and accordingly, the decree holders/appellants were not entitled to execute the said decree and, therefore, the execution case must be dismissed. 6. The facts stated above regarding fraud were totally denied by the decree holders/appellants. However, the decree holders/appellants specifically stated in their objection that the allegation of suppression of the aforesaid facts should not be accepted by the Court as such facts were disclosed in the two deeds of conveyance dated 7th August, 1987, executed by the said Raj. Kr Shaw (since deceased) in favour of the decree holders/appellants which were filed in Title Suit No. 2010 of 1986 and marked Exhibits. Therefore, It cannot be said that the said fact was not within the knowledge of the judgment debtor/respondent No. 1 and in fact the judgment debtor/respondent No.1 was pretending ignorance of the same. Kr Shaw (since deceased) in favour of the decree holders/appellants which were filed in Title Suit No. 2010 of 1986 and marked Exhibits. Therefore, It cannot be said that the said fact was not within the knowledge of the judgment debtor/respondent No. 1 and in fact the judgment debtor/respondent No.1 was pretending ignorance of the same. The decree holders/appellants also stared in their objection that after the death of Raj Kr. Shaw, Smt. Swapna Shaw had filed a suit against Tapan Kr. Shaw and Bulan Shaw praying inter alia, for a decree for declaration and the said suit was registered as Title Suit No. 3522 of 1994. However, Smt. Swapna Shaw after coming to know that the said deed of trust was never acted upon and the same was revoked by late Raj Kr. Shaw, she had withdrawn the suit. It was further averred in the written objection that the learned advocate for Ranjit Kr. Dutta (since deceased) in the Trial Court had taken inspection of the documents including the two deeds of conveyance on 19th September, 1988. So the judgment debtor/respondent No. 1 had no right to raise the objection regarding suppression of facts thereby committing fraud. Even if the judgment debtor/respondent No.1 had any right to raise such objection, he ought to have done so in the suit or in the appeal or before the Supreme Court and as that was not done, the judgment debtor/respondent No.1 could not be allowed to raise such question at the execution stage as the claim of the judgment debtor/ respondent No.1 was barred by the principles of constructive res judicata. Accordingly, the decree holders/appellants sought for rejection of the objection under section 47 of the Code of Civil Procedure filed by the judgment debtor/respondent No. 1. Therefore, the questions that need to be decided are whether (1) the decree holders/appellants were entitled to execute the decree for eviction against the judgment debtor/respondent No.1 as a co-owner even if the fact of suppression regarding the transfer of 50% of the suit property to a trust could be accepted by the Executing Court and whether (2) the Executing Court was justified in holding that the facts relating to constitution of fraud as disclosed in the objection under section 47 of the Code of Civil Procedure could be found on the materials on record. 7. 7. Before we proceed to consider on the question noted above, we may note that the learned senior counsel for the appellants Mr. Mukherjee did not raise any submission on the principles that when a party had suppressed material facts and obtained a decree by suppressing such facts, the Court must hold that the decree obtained under that circumstances must be treated to be a nullity. Keeping this principle in our mind, we now proceed to consider the question at issue as noted herein earlier. In our view, in the facts and circumstances of the present case, the question of fraud need not be gone into. In our view, as the decree holders/appellants being admittedly the co-owners of the premises in question were entitled to proceed with the suit to evict the judgment debtor/respondent No. 1 filed on the ground of expiry of the lease. As noted herein earlier, the original suit for eviction was filed for recovery of possession on the ground of expiry of lease which was for a period of 30 years. Admittedly the said period has expired and after expiry the suit for eviction was filed. The laws well settled that in a suit for eviction under the West Bengal Premises Tenancy Act, 1956, a co-owner can maintain a suit for eviction against the tenant went impleading the other co-owners as parties to the smt. In the case of Sri Ram Pasricha vs. Jagannath and Ors., All 1976 SC 2335, the Supreme Court in a suit for eviction filed under the provisions of the West Bengal Premises Tenancy Act, 1956 observed as follows:- "Jurisprudentially it is not correct to say that co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is therefore not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f) It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants." "Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogmaya Pakhira vs. Santi Sudha Bose, ILR (1968) 2 Cal 70, that a permanent lessee is not an owner within the meaning of section 13(1)(f) a co-owner would not be in a better position. We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is. We however express no opinion about the case of a permanent lessee as this point does not arise in this appeal." (Emphasis supplied) 8. The same view was expressed by the Supreme Court in its later decision reported in AIR 1977 SC 1599 , Smt. Kanta Goel vs. D.P. Pathak and Ors. In that decision the Supreme Court accepted the principle laid down in Sri Ram Pasricha's case, as noted herein earlier and held that one co-owner of a property can sue for eviction of a tenant in absence of other co-owners. It is true that the suits under the Tenancy Act would only require the notice to quit to be served by all or on behalf of all the co-owners of the suit property upon the tenant. It is true that the suits under the Tenancy Act would only require the notice to quit to be served by all or on behalf of all the co-owners of the suit property upon the tenant. Since the present case arose out of a suit for eviction not under the provisions of the Tenancy Act, but under the general law on the expiry of lease which admittedly did not come within the preview of the Tenancy Act, the question of serving notice to quit by all the co-owners or on behalf of the co-owners shall not arise at all as for filing the suit for eviction not under the Tenancy Act but under the general law, no notice to quit was required to be served by all the co-owners of the same. In view of the principles laid down in the aforesaid two decisions of the Supreme Court and as it is also well settled that a lessor who is admittedly a co-owner of a property is entitled in such capacity to a right to use and possess every inch of the suit property subject to the rights of other co-owners but without the interference from any trespasser, the Executing Court had no business to go into the question of fraud and suppression of material facts in the objection under section 47 of the Code of Civil Procedure. In this case, as noted herein earlier, the judgment debtor/respondent No.1 was admittedly a lessee whose lease had long expired. Since his lease having had expired long back prior to the date of filing of the suit he was liable to be evicted from the suit premises on the ground of expiry of the lease. Therefore, since the decree holders/appellants being admittedly co-owners of the suit premises were entitled to maintain the suit for eviction against the judgment debtor/ respondent No.1 and execute the decree passed against him. In support of this view, reliance can be placed to a Division Bench decision of this Court in the case of Ram Prakash Mondal vs. Snehalata Ghosh, 71 CWN 17. 9. A Division Bench of the Bombay High Court laid down the same principle and, therefore, it is necessary for us to quote the observations made in the aforesaid decision of the Bombay High Court, in the case of Yeshwant vs. Krishna, AIR 1940 Bom. 9. A Division Bench of the Bombay High Court laid down the same principle and, therefore, it is necessary for us to quote the observations made in the aforesaid decision of the Bombay High Court, in the case of Yeshwant vs. Krishna, AIR 1940 Bom. 13, which are as follows: "The rule that where the landlord's rights belong jointly to several persons a suit to eject a tenant can be instituted only by all the co-owners applies where there is a subsisting relationship of landlord and tenant. But where the tenant continues on sufferance after the expiration of the period of tenancy a suit brought to eject the tenant by one only of the co-owners is maintainable." (Emphasis added). 10. A single Judge of this Court in the case of Abdul Hamid & Ors. vs. Durga Charan Das, AIR 1967 Cal 116 , also held that the suit by a co-owner for recovery of possession from trespassers was quite maintainable in law without impleading the other co-owners in the suit. We are, therefore, of the view that even assuming that the decree holders/appellants had suppressed the facts regarding transfer of 50% share of the premises in question to a trust, then also the decree passed against the judgment debtor/respondent No.1 was or is executable by the decree holders/appellants who admittedly were and/or are still the 50% share holders of the same. On this ground alone the appeal could be allowed by us but since the Executing Court had allowed the objection under section 47 of the Code of Civil Procedure by holding that since the appellants had suppressed material facts as noted herein earlier, the decree obtained by the decree holders by committing fraud upon the Court and, therefore, was a nullity and not executable, we feel it necessary to deal with this aspect of the matter as well. Before we take up this question for our consideration, we need to consider the finding of the Executing Court for which the decree was found to be a nullity. Before we take up this question for our consideration, we need to consider the finding of the Executing Court for which the decree was found to be a nullity. According to the Executing Court, the fact of creating of trust during the pendency of the suit and the fact of modification and/or revocation of trust during the pendency of the suit were significant and material change in the title of premises No.7, Old Court House Corner and had gone through before the eviction suit was filed against the judgment debtor/respondent No. 1. The Executing Court also based his conclusion on the question of suppression of material facts thereby committing fraud on the Court as well as on the judgment debtor/respondent No.1 by relying on the allegation that one of the beneficiaries of the trust Smt. Swapna Shaw had never put her signature in the trust deed and such fact was not also focused by way of an amendment of the plaint of the suit for eviction by the decree holders/appellants. 11. On the above findings, the Executing Court held that fraud was practised not only upon the judgment debtor/respondent No.1 but also on the Court. Accordingly, the Executing Court allowed the objection under section 47 of the Code of Civil Procedure and held that the decree being a nullity was not executable. On the question of suppression of material and thereby committing fraud upon the Court and also upon the judgment debtor/ respondent No.1 we, have also heard Mr. Saktinath Mukherjee the learned senior counsel for the decree holders and Mr. Priya Brata Mukherjee for the judgment debtor/respondent No. 1. After giving our serious considerations to the submissions made by the learned Counsel for the respective parties on the aforesaid question and after considering the findings of the Executing Court, we are of the view that the question of fraud and suppression of material facts in the facts of this case could not arise at all. From the facts disclosed which would appear from the record of the eviction suit, it appears that the fact of creating trust and subsequent modification and revocation of the same were duly brought on the record of the suit for eviction. From the facts disclosed which would appear from the record of the eviction suit, it appears that the fact of creating trust and subsequent modification and revocation of the same were duly brought on the record of the suit for eviction. It appears from the record that a list of documents filed by the decree holders/appellants in the suit for eviction was marked as Exhibit 4 which is at page 48 of the Paper Book. From Exhibit 4, it appears that item Nos. 5 and 6 of the said lease clearly show that xerox certified copies of the deeds of conveyance by Raj. Kr. Shaw (since deceased) in favour of the decree holders/appellants were filed by the decree holders/appellants on 7th August, 1987 when the suit for eviction was pending in the Trial Court. From the records, it also appears that these two documents were admitted into evidence without any objection. The learned counsel for the judgment debtor/respondent No. 1 however, contended that the contents of the two documents cannot be looked into. In view of the decision of the Supreme Court in the case of P.C. Purushottam vs. S. Perumal, AIR 1972 SC 608 , the submission of Mr. Priya Brata Mukherjee for the judgment debtor/respondent No.1 cannot be accepted. The Supreme Court in the aforesaid decision clearly held that once a document is properly admitted into evidenced the contents of that document are also admitted into evidence though the contents may not be the conclusive evidence. From the aforesaid decision of the Supreme Court, it is clear that the contents of the deed of conveyance could be looked into and from the same, it would be evident that the judgment debtor/respondent No.1 had clearly the knowledge about the existence of the trust and subsequent revocation thereof. It also appears from the record that the learned counsel of the judgment debtor/respondent No.1 during the pendency of the suit inspected the documents and, therefore, it cannot be said that the decree holders/appellants by suppressing such creation of trust and revocation of the same subsequently had obtained the decree for eviction of the judgment debtor/respondent No. 1. In a very old authority of the Madras High Court in the case of A. Balsubhramania Chetti and Ors. In a very old authority of the Madras High Court in the case of A. Balsubhramania Chetti and Ors. vs. Swarnammal and Anr., ILR 38 Mad 203, it has been follows :- "It stands to reason therefore that the unsuccessful party cannot allowed to resort to fresh suit in order to make a fresh attempt to show that the evidence which was insisted on by his opponent as true was in reality false and to characterise such insistence as fraud in obtaining the judgment. Nor can be permitted to do so by adducing fresh evidence for the purpose, for it was his duty to place all his evidence before the Court at the former trial." (Emphasis added) 12. Applying the principles laid down in the aforesaid decision of the Madras High Court, we are unable to agree with the learned counsel for the judgment debtor/respondent No.1 nor we can be in agreement with the findings of the Executing Court in the matter of constitution of fraud by suppression of material facts as we find that the contents of the documents would clearly show that the fact of creating trust of revocation thereof subsequently was well within the knowledge of the judgment debtor/respondent No. 1. Accordingly, we must hold that the documents filed in the eviction suit would clearly show that the fact of creation of trust and subsequent modification and revocation of the same was duly recorded in the eviction proceeding. Accordingly, no blame could be levied on the decree holders/appellants for the same. Therefore, in our view, on the facts already on record, the Executing Court was not justified in holding that there was suppression of material facts which constituted fraud on the Court as well as on the judgment debtor/respondent No. 1. Apart from that, we are also of the view that the judgment debtor/respondent No.1 could not allege such suppression of fact first time in the Executing Court although he had knowledge of the existence of the trust and subsequent revocation thereof when the suit was pending. Apart from that, we are also of the view that the judgment debtor/respondent No.1 could not allege such suppression of fact first time in the Executing Court although he had knowledge of the existence of the trust and subsequent revocation thereof when the suit was pending. As the aforesaid facts were well within the knowledge of the respondent No.1 during the pendency of the suit, it was very much open to the judgment debtor/respondent No.1 to bring such fact to the notice of the trial court where the suit was pending and raise the question whether the suit was maintainable at the instance of the decree holders/appellants as the premises in question had already been transferred in half share by creating a deed of trust and the judgment debtor/respondent No.1 having not done so, cannot now be permitted to raise such facts for the first time in the Executing Court. Apart from that in view of our findings made herein earlier it was immaterial whether such facts were at all necessary to be brought to the notice of the Court where the suit was pending as the tenant or the lessee, as the case may be, was estopped from challenging the title of the decree holders in respect of the premises in question under section 116 of the Evidence Act. The last but not the least, in our view, the Executing Court had failed in this case to follow the directives of the Supreme Court rejecting the special leave petition and thereby permitted the judgment debtor/respondent No.1 to raise facts under section 47 of the Code of Civil Procedure as we are of the view that such an objection had to be filed by the judgment debtor/respondent No.1 in order to take a chance to stall the execution case indefinitely. It is very unfortunate that a senior Judge of the higher judicial service would fall into the trap and hold that the decree was a nullity and, therefore, not executable. Before parting with this judgment, we shall be failing in our duties if we do not consider the submission of Mr. Mukherjee for the judgment debtor/respondent No. 1. Mr. Mukherjee contended that in view of sections 51 and 53 of the Trust Act, question of revocation of trust and modification thereof could not arise at all. Before parting with this judgment, we shall be failing in our duties if we do not consider the submission of Mr. Mukherjee for the judgment debtor/respondent No. 1. Mr. Mukherjee contended that in view of sections 51 and 53 of the Trust Act, question of revocation of trust and modification thereof could not arise at all. Therefore, the Executing Court was justified in considering the fact that in view of transfer of premises in question in half share by creating trust, the suit filed by the decree holders against the judgment debtor was not maintainable in law and the decree passed therein was, therefore, a nullity and, accordingly was not executable as it was a nullity. In support of this contention, Mr. Mukherjee relied on a decision of the Supreme Court in the case of S.P. Chenganvaraya Naidu vs. Jagnnath and Ors., 1994 (1) SCC 1 and in the case of Yenkanna vs. Achanna, 52 CWN 714. Mr. Mukherjee further contended that after the expiry of lease, the lessee/judgment debtor/respondent No.1 became a tenant by sufference and not a trespasser. In support of this contention Mr. Mukherjee relied on the decisions in the case of Badrilal vs. Municipal Corporation of Indore, AIR 1973 SC 508 and Vhogavalli Venkayya vs. Kudapa Settya and Anr., AIR 1914 Mad 296. So far as the decision of the Supreme Court in the case of Badrilal vs. Municipal Corporation of Indore, AIR 1973 SC 508 , is concerned, the Supreme Court held that the lessee not being a tenant holding over only because a tenant by sufference and, therefore, could be evicted without notice. Third decision, in our view, has no manner of application to the facts and circumstances of this case. Apart from that, the question raised by Mr. Mukherjee at the execution stage, the learned advocate for judgment debtor/respondent No. 1 has been settled by the previous adjudication between the parties in the suit and, therefore, in the Executing Court, the judgment debtor is not permitted to raise such question. In the case of Vhogaualli Venkayya vs. Kudapa Settya and Anr., AIR 1914 Mad 296, it was only held that the expiry of a lease did not necessarily imply a determination of the right of possession and a lessee holding under an expired lease could, therefore, maintain a suit in ejectment against a mere trespasser. In the case of Vhogaualli Venkayya vs. Kudapa Settya and Anr., AIR 1914 Mad 296, it was only held that the expiry of a lease did not necessarily imply a determination of the right of possession and a lessee holding under an expired lease could, therefore, maintain a suit in ejectment against a mere trespasser. It is difficult to conceive how this decision of the Madras High Court can be applied to the facts of this case. Therefore, from the discussion made hereinabove, it is clear that the decisions cited by Mr. Mukherjee for the respondent No.1 have no manner of application to the facts of this case. 13. Lastly, Mr. Mukherjee strongly relied on a Division Bench decision of this Court in the case of M/s. Parekh Brothers vs. Kartick Chandra, AIR 1968 Cal 532 and relying on paragraph 15 of the said decision contended that since the transfer in favour of the trust to the extent of 50% share in the property was not brought to the notice of the Court and if such fact was brought to the notice of the Court, the Court could have held that the suit was not maintainable in law at the instance of the decree holders/appellants. Again, in our view, this decision of the Division Bench cannot have any manner of application to the facts and circumstances of this case. The first reason is that the aforesaid decision was rendered under the provisions of the West Bengal Premises Tenancy Act, as it then stood whereas the suit filed by the decree holders/appellants was admittedly not under the provisions of the West Bengal Premises Tenancy Act, 1956 but under the general law. Secondly, in that case the contract that was pleaded was different from the contract that was proved by evidence and the plaintiffs in that suit could only succeed on the case that he made out in his evidence. This is not the situation in the present appeal. Here admittedly the decree holders/ appellants were the lessees and they filed the suit for eviction on the ground of expiry of lease. No different contract was pleaded nor was proved by evidence. Accordingly, this Division Bench decision of this Court has no manner of application to the facts and circumstances of this case. In this connection, Mr. Here admittedly the decree holders/ appellants were the lessees and they filed the suit for eviction on the ground of expiry of lease. No different contract was pleaded nor was proved by evidence. Accordingly, this Division Bench decision of this Court has no manner of application to the facts and circumstances of this case. In this connection, Mr. Mukherjee also had brought to our notice a Full Bench decision of this Court in the case of Ratanlal Bangsilal and Ors. vs. Kishorilal and Ors., AIR 1993 Cal 144 and strongly relying on paragraph 144 of the said decision argued that since the plaintiff in the suit for eviction on the ground of expiry of lease were not the owners of the premises in question after the trust was created to the extent of 50% share in the suit property, the suit was not maintainable in law and the decree holders/appellants having suppressed this fact, the decree was a nullity. We have carefully considered the aforesaid Full Bench decision of this Court and particularly paragraph 144 of the same which is at page 178 of the said decision. After a careful perusal of the same, it appears to us that the aforesaid decision helps the decree holders/appellants instead of the judgment debtor/respondent No. 1. In that decision, it has been held that it is not correct to say that a co-owner of the property was not owner and a co-owner owns every inch of the composite property along with other and, therefore, it could not be said he was only a part or fractional owner. As noted herein earlier, even assuming the trust was created and such fact was not brought to the notice of the Court even then admittedly in this case, the decree holders/appellants remained co-owners of the decretal premises to the extent of 1/2nd share. Therefore, it is difficult to understand how this decision relied on by the learned counsel for the judgment debtor/respondent No.1 could be of any help to the judgment debtor/ respondent No. 1. Lastly, in our view, the decisions cited by Mr. Therefore, it is difficult to understand how this decision relied on by the learned counsel for the judgment debtor/respondent No.1 could be of any help to the judgment debtor/ respondent No. 1. Lastly, in our view, the decisions cited by Mr. Mukherjee under the Trust Act that is 1994 (1) SCC 1 (supra) and also 52 CWN 714 (supra) cannot have any manner of application to the facts of this case as we have hold that the question of suppression of material facts in this case on the materials on record cannot be accepted. 14. For the reasons aforesaid, we are of the firm opinion that the question of suppression of facts regarding creation of trust and modification and revocation thereof and thereby committing fraud upon the Court cannot arise in the facts of this case and accordingly the findings of the Executing Court on the question of facts and thereby committing fraud on the Court cannot at all be accepted. Even assuming that the aforesaid facts were suppressed and thereby the decree holders/appellants had committed fraud on the judgment debtor/respondent No.1 and the Court as well even then, in view of the admitted fact that the decree holders/appellants had 50% share in the premises in question and therefore, they had all the rights in the world to evict the judgment debtor/respondent No.1 from the premises in question. Accordingly, the Executing Court has acted illegally and with material irregularity in the exercise of its jurisdiction in allowing the objection under section 47 of the Code of Civil Procedure by which the Executing Court held that the decree was not executable as it was a nullity. Accordingly, the impugned order is set aside. Revisional application is allowed and the Misc. Case No. 2185 of 1995 filed by the judgment debtor/respondent No.1 stands dismissed. In view of the order passed in the revisional application, the Misc. Case No. 2609/87 arising out of the title Execution Case No. 66 of 97 at the instance of Tapan Kr. Shaw and Damodar Shaw is allowed and the Executing Court is directed to proceed with the execution case by granting police help to the decree holders/appellants in. terms of the order of the Supreme Court as noted earlier. In view of the order passed in C.O. No. 1501 of 1999, the appeal being F.M.A.T. No. 1975/99 becomes infructuous and accordingly, "it is disposed of. terms of the order of the Supreme Court as noted earlier. In view of the order passed in C.O. No. 1501 of 1999, the appeal being F.M.A.T. No. 1975/99 becomes infructuous and accordingly, "it is disposed of. There will be no order as costs. D.P. Sengupta, J.: I agree. Appeal disposed of. Later After the judgment was pronounced, the learned Advocate for the respondent Mr. Mukherjee pryas for stay of operation of this judgment for a period of two months from date. Considering the facts and circumstances of the case and in view of the earlier order of the Supreme Court, we do not find any reason to grant such stay. Accordingly, prayer for stay is refused. Let xerox certified copies of this judgment be made available to the learned" Advocates for the parties, if applied for, as expeditiously as possible.