Kalyan Jyoti Sengupta And Sanjib Banerjee, JJ. ( 1 ) THIS is an application for stay of operation of execution of the proceedings in Small Causes Court being SCC Case No. 112 of 1996, and is taken up for hearing. Respondents have appeared and have not filed any affidavit-in-opposition. ( 2 ) THE appeal has been preferred against an order of the learned 4th judge, City Civil Court at Calcutta in Title Suit No 1636 of 2004 passed on an application taken out by the applicant herein under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure. Such application was taken out for stay of execution proceedings arising out of an order under section 41 of the Presidency Small Cause Courts Act. Initially, the learned trial Judge granted interim relief of injunction. By the impugned order, the order of injunction was vacated upon contest. Learned Trial Judge while vacating the interim order has given detailed reasons both on facts and law. ( 3 ) ON 27th July, 2006 this appeal was admitted. Thereafter on 23rd August, 2006 an interim order of status quo was passed with regard to possession of the suit property which was operative till 28th August, 2006 or until further order whichever was earlier. On 28th August, 2006 the matter appeared before the Bench presided over by the Hon'ble Justice Bhaskar Bhattacharya and the Hon'ble Justice Prabudhha Sankar Banerjee when Their Lordships released the matter having found that the Bench had no determination to deal with the same. This matter came up yesterday for hearing for extension of the order of status quo. Learned Counsel for the respondent seriously opposed the prayer of extension and insisted that the stay application should be heard on merit as all steps have been taken for executing the order passed by the learned Small Causes Court under section 41 of the Act. ( 4 ) BEFORE we record the respective contentions of learned Counsel in this matter, we think that narration of the facts of this case is necessary. The appellant is the wife of one Giridhari Narayan Singh and she has been staying with her husband and children at a flat situated at premises No. 7, Chandra sur Lane, Calcutta-700 006. The flat is situate on the first floor of the building in the premises. The appellant is the wife of one Giridhari Narayan Singh and she has been staying with her husband and children at a flat situated at premises No. 7, Chandra sur Lane, Calcutta-700 006. The flat is situate on the first floor of the building in the premises. In this suit the appellant impleaded her husband as a proforma defendant. The suit was filed in the year 2004. In the plaint, the following reliefs have been prayed for: "in these circumstances, the plaintiff prays that your Honour would be graciously pleased to restrain the defendant from enforcing and/or executing the order passed by the Id. 4th Judge, SCC Court Case No. 112 of 1996 including disturbing and interfering with the possession of the plaintiff as described in the Schedule below by an order of temporary injunction till the disposal of the instant suit and/or pass such order/ orders as your Honour may deem fit and proper. " ( 5 ) SARDAR Hira Singh is the father-in-law of the appellant and the defendant No. 2 is the mother-in-law. Sardar Hira Singh had filed proceedings under section 41 of the Presidency Small Causes Court Act and such proceedings ended in a final order of eviction. In those proceedings, Giridhari was a party who was described as the licensee. The aforesaid order passed under section 41 was unsuccessfully assailed in an application under Article 227 in this Court. Giridhari carried the matter to the Apex Court, again unsuccessfully. However, the execution could not be proceeded with because of the order of injunction granted by the learned Court below. Today the question is whether we should grant the interim relief without hearing the appeal. ( 6 ) MR. Mukherjee, learned Counsel appearing for the appellant, contends that before the learned Court below, the interim order had continued for a long time. It was vacated on incorrect appreciation of fact and application of law as well. Once this Court had admitted the appeal to examine whether the aforesaid order was sustainable, the appeal will be rendered infructuous if interim order is not extended. Therefore, the hearing of the appeal should be expedited and interim order already passed should be allowed to continue for some time. ( 7 ) MR. Once this Court had admitted the appeal to examine whether the aforesaid order was sustainable, the appeal will be rendered infructuous if interim order is not extended. Therefore, the hearing of the appeal should be expedited and interim order already passed should be allowed to continue for some time. ( 7 ) MR. Mukherjee further submits that a separate suit can be maintained even if a proceeding is initiated under section 41 of the aforesaid Act or any order is passed therein. In support of his contention he has relied on a decision reported in AIR 1983 Cal 241 : 87 CWN 508 (Debabrata Mukherjee vs. Kalyan Kumar Ray ). The principle laid down in the Bench decision cited by Mr. Mukherjee is not and cannot be disputed. It is a well settled principle of law that in an application under section 41 of the aforesaid Act there can be no adjudication of title. The defendant or any other person who might be affected by that order can file separate proceedings either by way of a civil suit or otherwise to establish his title. This has been made expressly clear in the Act itself under section 47 thereof. But the question in this case is at what stage should such proceedings be initiated and before which forum? Here in the plaint the appellant has stated that she has right of residence in the suit premises as daughter-in-law, because the family is governed by the Mitakshara School of Hindu Law and the order passed under section 41 of the said Act was not binding on her as she was not a party. The learned Court below has discussed the matter in great detail. We do not wish to make any comment finally as to whether the decision rendered by the learned Court below is correct or not. But in order to grant interim order in a pending appeal, the Court has to examine at least whether the suit is maintainable, whether there is an arguable case made out in the plaint and thirdly, the balance of convenience and inconvenience. ( 8 ) MR. Mukherjee submits that when the appeal has been admitted and if interim relief is not granted it will be rendered infructuous. Ordinarily, this should be the approach of the Court but not in every case. ( 8 ) MR. Mukherjee submits that when the appeal has been admitted and if interim relief is not granted it will be rendered infructuous. Ordinarily, this should be the approach of the Court but not in every case. When the court finds that the suit filed is not maintainable and this goes to the very root of the matter, touching upon the question of jurisdiction, it will not, as a matter of law, grant any interim relief. ( 9 ) AN order has been passed under section 41. If section 41 is read along with other relevant sections, namely 42, 43, 47, 48 and 49, it will appear that such provisions are exhaustive and comprise a complete Code for dealing with the matter in a summary manner. Section 41 provides for adjudication of the disputes relating to right of recovery of possession by the licensor or the landlord, as the case may be; section 42 provides for appeal; section 43 provides for the procedure to be adopted and as far as practicable the provision of Civil Procedure Code to be adopted while dealing with the matter with a slight modification. Section 48 provides as follows: "48. Proceedings to be regulated by Code of Civil Procedure. In all proceedings under this Chapter, the Small Causes Court, shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure. " ( 10 ) FROM the aforesaid section read with the rules framed thereunder it is quite clear that the provisions of the Code of Civil Procedure, 1908 will apply even to the provisions of Chapter VII of the Act. ( 11 ) THE appellant before us though claimed a title independent of that of the third defendant. Whether she can set up such independent title as daughter-in-law under the law is yet to be seen, but in substance, we find she is claiming her interest through her husband who lost his case right upto the Supreme Court. When she had raised this question by filing a suit, it has to be examined whether such suit can be maintained in view of the provision of section 49 of the said Act. As we have already observed that by virtue of section 48, the provisions of Order 21 Rule 100 of Civil Procedure code are applicable. When she had raised this question by filing a suit, it has to be examined whether such suit can be maintained in view of the provision of section 49 of the said Act. As we have already observed that by virtue of section 48, the provisions of Order 21 Rule 100 of Civil Procedure code are applicable. In support of this proposition, we find a decision of a learned Single Judge of the Bombay High Court reported in AIR 1980 Bombay 55 (Sitaram Hari Salunkhe vs. Laxman Rambodh Dubey and Anr. ). If we treat the appellant as a third party, even then she can very well agitate all her contentions before the Executing Court where the execution is pending under Order 21 Rule 97 and all points relating to title can be agitated and decided under the provisions of Order 21 Rules 98,100 and 101. The provisions of Rule 101 of Order 21 make it clear that no other Court excepting the executing Court can have jurisdiction to decide such point. We, therefore, set out Rule 101: "101. All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding (emphasis added) anything contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. " ( 12 ) THE non-obstante clause makes it clear that provisions of other law are overridden. ( 13 ) THEREFORE, the question is whether a suit can be filed under section 49 of the Act by a third party though proceedings have been initiated under section 41. In our considered opinion, when such proceedings have been initiated, an occupant can file a suit as provided under sections 42 and 47 of the Act. Section 49 is the enabling provision and proceedings for establishing title to a property can be made either before the appropriate Civil Court or before any other forum. In our considered opinion, when such proceedings have been initiated, an occupant can file a suit as provided under sections 42 and 47 of the Act. Section 49 is the enabling provision and proceedings for establishing title to a property can be made either before the appropriate Civil Court or before any other forum. According to us when the final order under section 41 has been passed and particularly when such order is sought to be executed, no person, whether the judgment-debtor or any other person, can file any civil suit before any Civil Court having jurisdiction over the matter. Their remedy would be to approach the Executing Court alone in view of express provisions of Order 21 of the Code of Civil Procedure and judicial pronouncements we have already noted. Of course, this question of jurisdiction was not dealt with by the learned Trial Judge. He has gone on the merits of the matter and held that the execution proceedings could not be stalled when the appellant's husband had lost on all points. ( 14 ) IT is argued that in similar proceedings, initiated for recovery of possession of another flat against another son, a similar order has been passed by the learned Small Causes Court and such order has been set aside in revisional jurisdiction by this Court. This order of the High Court has been challenged before the Hon'ble Supreme Court by filing a special leave petition. It is argued that in the said special leave petition, the husband of the present plaintiff/applicant has applied for being added as party and such application is still pending. Mr. Mukherjee submits that taking note of the pendency of the aforesaid application before the Supreme Court, we should stay our hands because all the points are to be decided once and for all. We do not find any substance in this submission because pendency of the matter before the Hon'ble Supreme Court cannot be of any help unless an express order of stay is obtained. Besides, the applicant has not applied for impleadment before the Supreme Court. The proceedings pending before the Supreme Court relate to a different flat. So far as the order of eviction involving the present flat is concerned, it has reached its finality vis-a-vis the appellant's husband. Besides, the applicant has not applied for impleadment before the Supreme Court. The proceedings pending before the Supreme Court relate to a different flat. So far as the order of eviction involving the present flat is concerned, it has reached its finality vis-a-vis the appellant's husband. In such circumstances, we think that pendency of the matter before the Hon'ble Supreme Court does not have any bearing in this appeal. Therefore, we hold prima facie, of course, that the learned Court below had no jurisdiction to entertain the suit. As such, no interim order was called for. We have gone through the judgment of the learned Court below and we find prima. facie, on merits, it is difficult to come to any finding different from what has been arrived at. Apart from that, we do not find any material in the stay application to conclude that the appellant, at present, is staying in the same flat. Some documents have been annexed which relate to the year 1998 and no contemporaneous document has been annexed or produced to show that the appellant is presently staying in the same flat. On the contrary, it has been stated, of course from the Bar, that the appellant is staying at a different place. When no material has been produced before us to show that the appellant would be prejudiced, we do not think that any order should be passed. We make it clear that the observations and findings made by us are tentative. We, therefore, refuse to extend the interim order passed by this Court. ( 15 ) THE bailiff will proceed as usual. The application for stay thus stands dismissed. Extension of interim order refused.