Calcutta High Court (Appellete Side)
Smt. Pratima Kundu vs Ashok Kumar Tibriwal & Ors on 3 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1
03.04.12
Basudev
C.O. 2605 of 2011
Smt. Pratima Kundu
VS
Ashok Kumar Tibriwal & Ors.
Mr. M. K. Das,
Mr. P. K. Kundu,
Mr. P. Bose
- For the Petitioner.
Mr. K. D. Mukherjee,
Mr. K. Banerjee,
Mr. Abhrajit Mitra,
Mr. P. Ghosh
- For the Opposite Party No. 1.
The present revisioanl application is arising out of an composite order dated June
2, 2011 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore in Ejectment
Execution Case No. 1050 of 2010. The petitioner is not aggrieved by the first part of the
order but she is aggrieved by the portion of the order in which it is recorded that the
petitioner of the Misc. Case no. 1050 of 2010, Smt. Pratima Kundu is not a party to the
execution proceeding and she has no locus standi to file any application for removal of
defect. It appears that in Dispute case no. 82/R.C.S. of 1988-89 Sri Ashok Kumar Tibriwal
was successful in getting the order regarding cancellation of resolution recording cessation
of membership and allotment of flat no. 10G in the respondent society and various other
orders in his favour. The said order was unsuccessfully challenged by the Co-operative Society in Appeal No. 14 of 1991 which was decided by the West Bengal Co-operative Tribunal on April 21, 1995 affirming the award passed by the Arbitrator in Dispute Case No. 82/R.C.S. of 1988-89. In execution of the said proceeding, it appears that an application was filed under Order XXI Rule 97 of the C.P.C. by the petitioner in which an application was filed for removal of defect in relation to the Execution Case No. 29 of 2009.
The learned Judge is correct in holding that the petitioner is not entitled to move any such application in the execution proceeding for removal of defect. The said order, also, does not prejudice the right of the petitioner, if any, in proceeding with Misc. Case no. 1050 of 2010 and in the event, the petitioner is entitled to seek remedy under Order XXI Rule 97 of the C.P.C. and satisfies the Court regarding his right it is needless to mention that he would be entitled to an order.
2In view thereof, I do not find any infirmity in the order dated June 2, 2011. Accordingly, the revisional application fails.
However, there shall be no order as to costs.
Urgent photostat certified copy, if applied for, be given to the parties upon compliance of necessary formalities.
(Soumen Sen, J.)