Calcutta High Court (Appellete Side)
Ac Dr. Biswaranjan Maiti vs Anjana Sengupta & Ors on 15 July, 2011
Author: Harish Tandon
Bench: Harish Tandon
1 Sl/ 15.7.11 C.O. 62 of 2010 23 ac Dr. Biswaranjan Maiti
-vs-
Anjana Sengupta & Ors Mr. Srijib Chakraborty ... For Petitioner Mr. Debasish Roy Mr. Ashutosh Pandey ... For Opposite Parties This revisional application is directed against order No. 46 dated 2nd January 2010 passed by learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Misc. Case No. 159 of 2007 by which an application for dispensing with the service of notice upon the proforma opposite parties is dispensed with.
This is an application under Order 21 Rule 101 of the Code of Civil Procedure filed by the petitioner claiming independent right, title and interest in respect of the suit property. The opposite party no. 1 had obtained a decree for eviction against the opposite parties no. 2 to 5 and put the said decree in execution.
According to the petitioner, the said tenancy was held by his father and upon his death, he, along with the proforma opposite parties and the opposite parties no. 2 to 5, succeeded to the said tenancy. It is alleged that the decree which is passed against the opposite parties no. 2 to 5 is not binding upon the petitioner.
In the said application under Order 21 Rule 101 of the Code of Civil Procedure, the petitioner not only made the decree holders and judgment debtors as parties, 2 but also made the proforma opposite parties, who, according to the petitioner, are the heirs and legal representatives of the deceased tenant. Opposite party no. 1, the decree holder, filed an application for C.O. 62 of 2010 dispensing with the service of notice upon the proforma opposite parties as no relief is claimed against them in the application filed by the petitioner.
The Executing Court allowed the said application and dispensed with service of notice of the said miscellaneous proceeding upon the proforma opposite parties.
What has been claimed by the petitioner is that the tenancy originally stood in the name of his father and upon his death it devolved upon his heirs and legal representatives, including the petitioner. Thus, there is no adverse claim made by the petitioner either against the judgment debtors or the said proforma opposite parties. Non appearance of the proforma opposite parties shall not in any manner be prejudicial to the interest of the petitioner.
Thus, I do not find any reason to interfere with the order impugned in this revisional application.
The revisional application is dismissed. There will be no order as to costs.
The Executing Court is requested to dispose of the said miscellaneous proceeding, being Miscellaneous Case No. 159 of 2007, as expeditiously as possible without granting unnecessary adjournments to either of 3 the parties.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)