Judgment : PINAKI CHANDRA GHOSE, J. Instead of taking up the applications filed by the parties we hear out all the appeals since all the appeals are directed against an order dated 23rd March, 2005 whereby the Hon’ble Single Judge passed various interim orders in pending applications filed by the third parties in a proceeding for execution of recovery of possession. It appears to us that the applications had been taken out by several applicants to resist the execution of a decree passed in the Civil Suit No.9 of 2003. The said decree has been passed on an application under Chapter 13A of the Original Side Rules of this Honble Court evicting the defendants Sri Ranisati Jute Pvt. Ltd. Being aggrieved these appeals have been filed by the parties and claimed to have possession of the portion of the said premises in question. By a registered Deed of Lease and assessment dated 22nd August, 1991 the deities granted a lease in respect of the premises in question to Sri Ranisati Jute Pvt. Ltd. The Deities filed the suit against Sri Ranisati Jute Pvt. Ltd., lessee claiming its eviction from the said premises. By an order dated 24th March, 2004 an application was filed by the deities under Chapter 13A of the Rules of this Honble Court and a decree was passed directing eviction of Sri Ranisati Jute Pvt. Ltd. the defendant. It is to be noted that the decree was passed by the consent of the parties. By the consent of the parties the decree provided that receiver be appointed to take symbolical possession of the premises. It is also to be noted that defendant was not in physical possession of the premises. It is further submitted that the decree was obtained in collusion with the said Sri Ranisati Jute Pvt. Ltd by the decree holder. A number of persons including, Sri Chandan Choudhury, the appellant herein who claimed to be Thika Tenant were in possession of the premises. These Thika Tenants were in actual physical possession of the premises either by themselves or through their Tenants or Bharatias. It is the case of the appellants that they were not a party in the suit and they claimed their right/title in the suit property independently and claimed themselves to be Thika Tenants under the Calcutta Thika and Others Tenancies and Lands (Acquisition and Regulation) Act, 1981. It is the case of the appellants that they were not a party in the suit and they claimed their right/title in the suit property independently and claimed themselves to be Thika Tenants under the Calcutta Thika and Others Tenancies and Lands (Acquisition and Regulation) Act, 1981. Accordingly, application was filed praying for leave to prefer an appeal which was granted by the Court. Two of the Thika Tenants namely Bharati Barick in G.A. No. 517 of 2005 and Gopal Shaw in G.A. No. 518 of 2005 applied for being examined pro interesse suo and also under Order 21 Rules 97 to 102 to establish their rights as Thika Tenants in the said property. The two applications were moved by the said Tenants and prayed for stay of execution of the decree. The said two applications and also an application of Bharatiyas were disposed of by the said common judgment dated 23rd March, 2005 by the Court. By the judgment and order dated 23rd March, 2005 the right, title and interest of all the Thika Tenants including the appellants and the Bharatiyas at the said premises were finally adjudicated and decided. It is the case of the appellants that none of the Thika Tenants of the said premises except Bharati Barick and Gopal Shaw was heard but their rights to property were completely adjudicated upon by the Hon’ble Single Judge. During the hearing of the two applications, it appears that the learned Trial Court called for the records of Thika Controller and examined them. However, opportunity was granted to the two Thika Tenants to inspect the said records of the Thika Controller. By the judgment and order the Tenants were directed to vacate within two weeks and the two applications were directed to be heard. In G.A. No. 517 of 2005 the Court directed as follows:- “Therefore, I direct the Receivers shall not take physical possession of this portion of the plot provided of course, this applicant deposits a sum of Rs.3,000/- in advance with the Joint Receiver and go on depositing a sum of Rs. 3,000/- per month with the Joint Receiver who shall hold and keep it in the separate account. 3,000/- per month with the Joint Receiver who shall hold and keep it in the separate account. Such advance payment shall be made within seven days from the date of receipt or service of this order (whichever is earlier) failing which the Receivers shall take physical possession of this Plot evicting all persons with the help of the Police in terms of my earlier order.” The Court further held in G.A. No. 518 of 2005 as follows:- “Susila Devi Lakhi Narayan Shaw have filed their return in Form “A” under the provision of Thika Act, 1981 as amended in 2002 only on 21st February, 2005. A genuine and bona fide tenant is required to furnish returns in From “A” within a stipulated time. This time expired long time back. I am of the prima facie view that this filing of Returns on 21st February, 2005 is sham exercise, and is done aiming at to set up defence in the execution application. This execution application has been initiated long before filing of the above returns. It seems to be me after the Receiver has taken symbolic possession of this property this return has been filed to create a purported right of thika tenancy. So, I am of the view prima facie of course, that there has been no Thika Tenancy so far this portion of the land is concerned and these so9 called Bharatias are no Bharatias under the law and they are in unauthorized occupation and possession of this portion of land. Therefore, they cannot get any interim relief. However, I give fortnight time to these applicants viz. Subhasis Dey, Tapas Paul, Pradeep Barui, Khaderu Ram Shaw, Gouri Devi, Jitendra Shaw, Shankar Barui, Dipali Dey, Samar Dutta, Modho Lal Seth to vacate their respective portions of occupation and had over possession to Joint Receiver, failing which the Receiver will take physical possession, and to put their own padlock thereon until further orders of this Court. I find from the records of Madan Chandra Dutta though he has not come forward to resist this application he has filed return in Form “A” in 1983 and subsequently in 2005. Since, the Return has been filed contemporaneously under the first Act, it has to be examined what is the implication of furnishing further and similar returns subsequently. I find from the records of Madan Chandra Dutta though he has not come forward to resist this application he has filed return in Form “A” in 1983 and subsequently in 2005. Since, the Return has been filed contemporaneously under the first Act, it has to be examined what is the implication of furnishing further and similar returns subsequently. I think that these persons’ right shall be protected by granting ad interim relief as granted in the case of Hiralal Thakur and Gopal Shaw. Therefore, the areas of occupation of Rabindra Das and Debanand Das, Mangal Das, Ashok Das, Anandi Das will remain under symbolic possession of the Receiver and to be occupied by these persons under Receiver. The Receivers shall cause a measurement to be taken of the areas of occupation. This person shall jointly pay an amount to be calculated at the rate of Rs. 3 per square feet as a charge for occupation of the ground. This amount shall be paid in advance within seven days from the date of taking measurement and shall go on paying month by month each and every month to the Receiver who shall keep it separately in Bank.” The application which was filed by Sri Chandan Choudhury the Court held as follows:- “I accordingly give fortnight time to Gita Rani Ghosh, Josna Majhi, Moni Saha to vacate and hand over possession to Receiver failing which the same course of action shall be taken, as in case of Sushila Devi.” In the case of Ram Chandra Dutta the Court held as follows:- “Ram Chandra Dutta is found from the records to have furnished returns in “A” Form in 1983. So interim protection to the persons as mentioned in serial number 5 of paragraph 3 in supplementary affidavit for occupying under him is also given on the same terms as in case of Madan Chandra Dutta”. In the case of Tara Debi Singh and Nandalal Singh the Court held as follows:- “Tara Debi Singh and Nandalal Singh have not been able to establish any right of thika tenancy. They have filed Returns on 18th February, 2005. This return is not prima facie acceptable under the law to be valid one to establish the claim of thika tenancy. Similar situation appears so far the Saipali Das, Pusparani Das, Shova Saha, Pratima Ghosh and Soma Ghosh, Smt. Saraswati Debi are concerned. They have filed Returns on 18th February, 2005. This return is not prima facie acceptable under the law to be valid one to establish the claim of thika tenancy. Similar situation appears so far the Saipali Das, Pusparani Das, Shova Saha, Pratima Ghosh and Soma Ghosh, Smt. Saraswati Debi are concerned. Their respective returns were filed on 17th February, 2005, 18th February, 2005 respectively after initiation of the execution application and after the Receiver having taken possession. It is simply undeliverable prima facie. I, prima facie, hold these persons have no right of Thika Tenancy as the returns were not filed within the time mentioned in the first Act. Therefore, the persons as mentioned in serial Nos. 53, 116, 1, 63, 65, 61, 66, 113, 37, 59, 67, 62, 54, 50, 22, 48, 112, 49, 52, 12, 97, 89, 47, 51, 101, 90, 55, 109, 68, 64, 114, 55, 98, 83, 81, 93, 69, 79, 80, 75, 102, 107, 82, of the Cause title of the application who are claiming to be Bharatias under the aforesaid persons have no right to occupy the premises. The names of these persons are given hereunder:- 1) Sati Rani Shaw (53) 2) Rabindra Barik (116) 3) Swarup Roy (1) 4) Hari Ram Gond (63) 5) Ghosham Das (65) 6) Jalim Das (61) 7) Arbind Singh (66) 8) Menoka Rani Das (113) 9) Subhashini Barik (95) (Pramanick) 10) Khokan Patra (37) 11) Chabi Roy (59) 12) Kanon Hazra (67) 13) Panchubala Das (62) 14) Santanu Shaw (54) 15) Purnima Barik (50) 16) Sahadeb Barik (22) 17) Rajendra Barik (48) 18) Chunilal Jadav (112) 19) Laxminarayan Karmakar (49) 20) Aloka Ghosh (52) 21) Sunil Kumar Chakraborty (12) 22) Sibu Pada Swar (97) 23) Singeswar Das (89) 24) Kaleshwar Das (47) 25) Gora Ghosh (51) 26) Bijali Das (101) 27) Moti Das (90) 28) Babu Lal Das (55) 29) Jageswar Das (109) 30) Rajendra Das (68) 31) Sita Ram Das (64) 32) Mahadeb Das (114) 33) Babu Lal Das (55) 34) Arvind Kumar Das (98) 35) Ramu Mahato (83) 36) Sree Mahato (81) 37) Rameshwar Mahato (93) 38) Jatadhari Jha (69) 39) Budhan Mahato (79) 40) Binderswar Mahato (80) 41) Baldeb Shaw (75) 42) Kundan Lal Saigal (102) 43) Shankar Lal Pal (107) 44) Shivu Mahato (82) They were also given fortnight times to vacate and withdraw from their respective portion of occupation and hand over possession to Joint Receiver, failing which the similar course of action shall be adopted by the Receiver.” In the case of Jyotish Chandra Guha and Malati Rani Guha the Court held as follows:- “I find from the records produced by the Thika Controller that a return in Form “A” was filed without mentioning any date. However, having examined the age and nature of the document I am prima facie satisfied that this was not a subsequent creation but it was filed contemporaneously. The similar protection is given to these persons who are occupying through them, viz. Madan Chandra Dey, Rambilash Das, Bhagal Ram Gupta, Tiloktoma Sil. The Receiver shall take measurement of the area of occupation of these persons and after the measurement is complete these persons shall pay an amount to be calculated at the rate of Rs. 3 per square feet. Madan Chandra Dey, Rambilash Das, Bhagal Ram Gupta, Tiloktoma Sil. The Receiver shall take measurement of the area of occupation of these persons and after the measurement is complete these persons shall pay an amount to be calculated at the rate of Rs. 3 per square feet. They payment shall be made in advance within seven days from the date of taking measurement and shall go on paying month by month at the aforesaid rate to the Joint Receiver who shall keep the amount separately in Bank and hold the same. However, I observe all these findings both on fact and law are absolutely tentative and prima facie and without prejudice to the rights and contentions of the parties. The matter shall be heard on affidavits. Let, the affidavit-in-opposition be filed by the decree holder and the Judgement debtor within seven days from date, affidavit-in-reply. Reply is to be filed within one week thereafter and the matter to appear in the list for hearing three weeks hence. Thika Controller may file affidavit, if so advised, within fortnight from the date and copies of the affidavit shall be exchanged by all the persons mutually as above. Thika Controller shall not proceed to adjudicate the matter until further order and shall furnish Xerox copy of the Returns filed by the persons above and which were produced in Court and to be kept with the records and original shall be produced at the time of hearing of this application.” It appears that the Honble Single Judge finally adjudicated the rights of the Thika Tenants and Bharatiyas. Being aggrieved, these appeals have been filed by all the Tenants and Bharatiyas who are directed to vacate the said premises in question. The Learned Senior Advocate appearing on behalf of the appellants, Thika Tenants and Bharatiyas, submitted that even though His Lordship was of the view that there were disputed questions of fact and law which could not be decided only after the affidavits are filed. The Honble Single Judge was pleased to adjudicate the right, title and interest of all Thika Tenants and Bharatiyas on the basis of the records of the Thika Controller and held that Thika Tenants who filed return under Calcutta Thika and Others Tenancies and Lands (Acquisition and Regulation) Act, 1981 but before 2005 were protected against eviction and Bharatiyas under whose Thika Tenants were accordingly protected. But each of the Thika Tenants was directed to pay at the rate of Rs.3,000/-per month irrespective of area and Bharatiyas were directed to pay at the rate of Rs.3/-per sq.ft. It is further submitted that the Thika Tenants who filed returns in 2005 after coming into effect of West Bengal Thika Tenancy (Acquisition and Regulation Act, 2001 were not entitled to protection and accordingly, these Thika Tenants and Bharatiyas under them were directed to be evicted. The Court further held that the returns filed by the Thika Tenants in 2005 were sham and beyond the time. It is also submitted that the Rules under the 2nd Act came into force on 2nd November, 2004. The learned Senior Counsel drew our attention to Rule 3(1)(a) and submitted that 240 days time has been granted to Thika Tenants from the date of the commencement of the Act to file returns and Thika Controller has been empowered to extend time to file returns. Thus the right, title and interest of their respective properties of all Thika Tenants and Bharatiyas at the premises were finally adjudicated and defeated by the said impugned order. It is further submitted that the impugned order is erroneous on the following grounds:- (a) On the date of the judgment and order both under the 1981 Act, Section 5 and 6 under 2001 Act, Sections 4 and 5, lands comprised in tenancies of Thika Tenants vested in and continued to vest in the State Government free from all encumbrances and the Thika Tenants continued to occupy the lands under the State Governments. They cannot be evicted in the suit by the deities. (b) Classification made by the Hon’ble Trial Court that those Thika Tenants who filed returns before 2005 were protected under the Act and those who filed their returns after 2005 were not protected is also without any basis and is erroneous. (c) The finding of the learned Trial Court that returns filed by Thika Tenants with the Thika Controller in 2005 were beyond time is erroneous. 2001 Act came into effect from 1.3.2003. Rules framed under the 2001 Act came into force with effect from 2.11.2004 (PB 1 Pg.252). Rule 3(1)(a) of the Rules provided that Returns could be filed with 240 days and the Controller has been empowered to extend such time. 2001 Act came into effect from 1.3.2003. Rules framed under the 2001 Act came into force with effect from 2.11.2004 (PB 1 Pg.252). Rule 3(1)(a) of the Rules provided that Returns could be filed with 240 days and the Controller has been empowered to extend such time. (d) Before the affidavits were filed the learned Trial Court merely by looking at the records of the Thika Controller should not have held that the returns filed by Thika Tenants after 2005 were sham. (e) Direction by the Hon’ble Judge to Thika Tenants and Bharatiyas respectively to pay at the rates of Rs.3000/- per month and Rs.3/- per square foot, it is submitted, is without any basis. There are no such provision for payment either under 1981 Act or 2001 Act. Payments are to be made to the State Government under Section 6 of 1981 Act and Section 5(1) of the 2001 Act at the rates to be decided by him. It was further submitted that the learned Trial Court held that the decree was executable against the Thika Tenants and Bharatiyas and directed eviction in execution. This finding erroneous for the following reasons:- (a) Thika Tenants were not parties to the suit and they were not bound by the decree. (b) Thika Tenants were claiming through Sri Ranisati Jute P. Ltd. against whom the decree was passed. (c) Thika Tenants were claming through the deities and after the Acts under the State Government. (d) Deities had no right and is not entitled to execute the decree against the appellant. He contended that under Section 5(3) of the 2001 Act the Thika Controller has exclusive jurisdiction to decide whether a person is a thika tenant or not. Section 21 of the said Act expressly bars the jurisdiction of the civil court to decide any question which the Controller is required to do under the Act. It is, therefore, respectfully submitted that this Hon’ble Court has no jurisdiction to decide the question whether the occupants of the premises are Thika Tenants or to interfere with their right conferred by the Act. The jurisdiction to decide the question whether a person is a thika tenant or not has been expressly taken away from the Civil Court. He also contended that judgment and order is also erroneous as the learned Judge held that Thika Controller had exclusive jurisdiction in the matter. The jurisdiction to decide the question whether a person is a thika tenant or not has been expressly taken away from the Civil Court. He also contended that judgment and order is also erroneous as the learned Judge held that Thika Controller had exclusive jurisdiction in the matter. He further contended that 1981 Act repealed by 2001 Act. Section 27 of the Act reserves the rights of the appellant accrued under the 1981 Act 2001 Act came into force with effect from 01.03.2003. 2001 Act was enacted with new objects and new provisions, particularly, regarding power of Thika Controller. It is further submitted that a stranger claiming independent right can apply to Court even before he is dispossessed. In support of his contention he relied upon the decision of 1997 (3) SCC 694 (Paras 511). It is submitted that only course open to the petitioners who were sought to be evicted by Joint Receivers in execution of the decree is to apply under Order 21 Rules 97 to 99 of the Code of Civil Procedure. In support of his contention he relied upon the decision of 41 CLJ 371; AIR 1972 Cal 345 (Para 9). He further submitted that Order 21 Rule 97 read with Section 101 of the Code of Civil Procedure has given power to the Court to decide the question when a third party comes before the Court and claims a right/title to resist the decree. He also submitted that the Special Officer appointed by Court claimed arrears of rent which was duly paid. By a notice dated 22.08.1991, S.N. Bagla, sole Trustee requested Thika Tenants to attorn their tenancies in favour of Sri Rmasati Jute P. Ltd. In these circumstances, he submitted that the appeals should be allowed and the judgement and order dated 23rd March, 2005 should be set aside. He further submitted that the decree dated 24th March, 2004 should not be binding on the appellants and the amounts so deposited by the Thika Tenants should be returned to the respective Thika Tenants by the Receivers. He further submitted that the decree dated 24th March, 2004 should not be binding on the appellants and the amounts so deposited by the Thika Tenants should be returned to the respective Thika Tenants by the Receivers. On the per contra, the learned counsel appearing on behalf of the respondent submitted that in a writ petition the Thika Controller was restrained by an Order dated 8th July, 1985 being Matter No. 829 of 1985 from making any question of rent until the disposal of the said application and the Special Officer was appointed for such purpose. By a judgment dated 8th/11th July, 1988, Baboo Lal Jain, J. was pleased to hold that the property in question was a debut tar estate and, therefore, provision of Thika Tenancy is not applicable. It is further submitted that no appeal was preferred by the Thika Controller. Therefore, at this stage it cannot be claimed that the said property is a Thika Tenancy. Accordingly, the occupants cannot claim themselves as a Thika Tenant and the Thika Controller also cannot sit on appeal over the judgment and order already passed by the High Court. Hence, it is submitted that the premises in question was a debut tar estate and there is no substance in the argument of the appellants. The learned Counsel relied upon a decision reported in 2001 (3) CHN 641 (Shree Shree Iswar Satyanarayanjee and Ors. Vs. S.C. Chunder) and submitted that the defence of the appellants is illusory and sham. Therefore, the decree cannot be set aside and/or reversed. He further submitted that the decree against a tenant binds sub-tenants. He relied upon the following decisions in support of his contention : 1. 1. AIR 2005 SC 1891 (Vithalbhai Pvt. Ltd. Vs. Union of India); 2. 2. AIR 1988 SC 1740 (Burmah Shell Oil Distributing Vs. Khaja Midhat Noor and Ors.); 3. 3. AIR 1964 SC 1889 (Rupchand Gupta Vs. Raghuvanshi Pvt. Ltd. and Anr.); 4. 4. AIR 2003 SC 4106 (Arm Group Enterprises Ltd. Vs. Waldorf Restaurant And Ors.). In these circumstances, he submitted that appeals should be dismissed. Union of India); 2. 2. AIR 1988 SC 1740 (Burmah Shell Oil Distributing Vs. Khaja Midhat Noor and Ors.); 3. 3. AIR 1964 SC 1889 (Rupchand Gupta Vs. Raghuvanshi Pvt. Ltd. and Anr.); 4. 4. AIR 2003 SC 4106 (Arm Group Enterprises Ltd. Vs. Waldorf Restaurant And Ors.). In these circumstances, he submitted that appeals should be dismissed. We have heard the learned counsel for the parties and it appears to us that to resist the decree various persons came up with different applications resisting execution of the said decree on the ground that they are not bound by the decree and are enjoying their independent right over the property in question. They prayed for adjudication of their right/title in the execution proceeding. After the amendment of Code of Civil Procedure, a separate suit by a third party to a decree has become barred after initiation of execution proceeding. In this situation if a third party asserts before an Executing Court that he is not bound by the decree and has independent right over the property then the Executing Court shall adjudicate such right of the third party before giving direction for eviction. If the third party fails to prove his right/title then the decree-holder should be put into possession. In a similar matter, i.e. Subhasis Dey & Ors. Vs. Shree Shree Iswar Satyai in A.P.O. No. 136 of 2005, G.A. No. 2805 of 2009, C.S. No. 9 of 2003 and E.C. No. 71 of 2004, the Division Bench of this High Court on 27th June, 2011 was pleased to set aside the impugned order and direct the Executing Court to dispose of the proceedings finally on the basis of the affidavit that has been filed pursuant to the order of the Court. In the said decision the Division Bench held as follows:- “In this type of proceeding, there is no scope of considering grant of interim order on the basis of prima facie case of the third parties; in other words unless the third parties are found to have no better title than that of the decree-holder on contested proceedings, an Executing Court cannot direct execution follow by way of interim measure against such third parties keeping the application pending. Thus, in a proceeding under Order 21 Rule 97 read with Section 101 of the Code of Civil Procedure the Executing Court must finally dispose of the application by passing final order and the order impugned in this application by which the learned Single Judge directed the executing to follow subject to final decision, being not satisfied by the prima facie case of the third party, cannot be supported. Similarly, after holding prima facie case of the third party, there was no question of imposition of condition for staying in the property. We have already held that in this type of proceeding there is no scope of passing this type of interim order. We, therefore, set aside the order impugned and direct the Executing Court to dispose of the proceeding finally on the basis of affidavit that has been filed pursuant to the order impugned.” Following the said order of the Division Bench, we also set aside the order on the same ground and request the Hon’ble Single Judge to dispose of the execution application finally. We make it clear that we have not decided the alleged right of the third parties/appellants and we kept all points open which are to be decided by the Hon’ble Single Judge at the time of deciding the applications in the execution proceedings. All these appeals are thus disposed of with the above observation.