Calcutta High Court (Appellete Side)
Ac vs Supti Dasgupta on 11 February, 2014
Author: Harish Tandon
Bench: Harish Tandon
1 Court 11.02.2014 C.O. 337 of 2014 No. 22 Sl 28 Dilip Kumar Dutta @ Dilip Dutta Ac -vs-
Supti Dasgupta Mr. Vivek Jyoti Ghosh Mr. Uttam Kumar De ... For Petitioner This revisional application is directed against Order No. 65 dated 8th January 2014, passed by the Civil Judge, (Junior Division), 3rd Court, Alipore, in Miscellaneous Case No. 12190 of 2012, by which an application under Section 151 of the Code of Civil Procedure and an application under Order 26 Rule 9 of the Code of Civil Procedure, for bringing the record pertaining to the Ejectment Execution Case No. 8949 of 2012, are rejected.
Admittedly, the petitioner suffered an ex parte decree for eviction, which is assailed under Order 9 Rule 13 of the Code of Civil Procedure.
The petitioner contends that there was no service of summons on the petitioner and taking advantage of the ex parte decree, he had been wrongfully evicted from the suit premises.
The petitioner further says that the bailiff has recovered possession, not contemplated under the schedule of the decree, and, therefore, the excessive possession, taken by the bailiff, should be returned and/or handed over to the petitioner.
The scope under Order 9 Rule 13 of the Code of Civil Procedure is limited as it cannot assume the character of the original proceedings. Once the petitioner has alleged that there was no service of summons and the ex parte decree is liable to be set aside, the trial Court is bound to consider the said application within the provisions of Order 9 Rule 13 of the Code of Civil Procedure.
2By filing the aforesaid applications, the petitioner tried to enlarge the scope of the proceedings which is primarily filed under Order 9 Rule 13 of the Code of Civil Procedure and, therefore, this Court does not find any infirmity and/or illegality in rejecting the aforesaid applications.
It appears that the main application Order 9 Rule 13 of the Code of Civil Procedure is otherwise ready for hearing, as the Court has fixed the date for argument, this Court feels that the said proceedings must reach to its logical end at the earliest.
Accordingly, this Court requests the trial Court to dispose of the Miscellaneous Case No. 12190 of 2012 as expeditiously as possible, preferably within three weeks from the date of communication of this order, in accordance with law.
For abundant precaution it is made clear that this order shall not have any impact on the consideration of the said application under Order 9 Rule 13 of the Code of Civil Procedure, as this Court had no occasion to go into the merit thereof.
It is once again recorded that the trial Court shall not be swayed by the fact that this Court has declined to interfere with the impugned order and shall decide the said proceedings on merit in accordance with law.
The revisional application is, thus, disposed of.
There shall, however, be no order as to costs.
(Harish Tandon, J.)