Calcutta High Court (Appellete Side)
Anup Kumar Gupta & Anr vs Associated Trade Agents & Ors on 15 November, 2017
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
3. 15.11.2017
.
debajyoti C. O. No.2383 of 2017 with C. O. No.2890 of 2017 Anup Kumar Gupta & Anr.
Vs. Associated Trade Agents & Ors.
Mr. Aniruddha Chatterjee, Mr. Rahul Karmakar, Ms. Gargi Goswami ...... For the petitioners.
Mr. Amrit Lal Dhar, Mrs. Arunima Lala (Sengupta) ...... For Opposite Party No.1.
The instant revisional application has been filed by the legal heirs of the second defendant in an eviction suit being Ejectment Suit No.160 of 2010 before the Small Causes Court at Calcutta. In the said suit, the defendant no.2 had filed a written statement and was contesting the same. The said defendant no.2 is stated to have died on 29th November, 2010, that is, in the same year as the suit was filed.
It is necessary also to point out that the first defendant was the brother of the deceased and the third defendant was a sister of the deceased. The said defendant nos.1 and 3 had also filed written statements and were contesting the suit. The suit was decreed without Court's knowledge of the death of the second defandant.
The applicants before me, who claim to be legal heirs of the deceased second defendant, state that they came to know of the said suit and decree only when the bailiff of the Court came to serve a writ of possession at the suit premises after the opposite party decree holder put the decree in execution.
The decree holder opposite party submits that the Court was informed of the death of the second defendant by the legal heirs/applicants before me, after passing of the decree and seven years after the death of the second defendant.
The legal heirs of the deceased, being the applicants before this Court under Article 227 of the Constitution of India, have filed an application under Section 47 of the Code of Civil Procedure, inter alia, contending that the decree is a nullity having been passed against a dead person. The Court below in different proceedings including show cause has found fraud having been perpetrated on the Court.
Without entering into the merits of the execution proceedings and the other issues, and findings of the Executing Court, C.O.2383 of 2017 is disposed of by directing as follows:-
(a) The Executing Court shall dispose of the pending application under Section 47 of the Code of Civil Procedure, 1908 on merits as expeditiously as possible and preferably within a period of 45 days from the date of communication of a server copy of this order.
(b) The applicants legal heirs of the deceased defendant no.2 shall put in their share being one-third of Rs.1,88,701/- together with interest @12% per annum on and from 1st March, 2012 till the date of actual deposit with the Registrar of the Small Causes Court at Calcutta.
Notice of such deposit shall be given immediately to the decree holder by the applicants before me.
(c) The deposit, as above, shall be made within a period of one week from date and the decree shall remain stayed only upon making the deposit, as above, and thereafter until disposal of the Section 47 application by the learned Court below.
(d) The applicants before me shall continue to deposit monthly occupational charge at the enhanced rate with the Court on a month-to-month basis on and from 1st December, 2017 and not later than 5th of each English calendar month thereafter.
Upon failure to make the deposit in question or monthly deposit thereafter, the decree shall become automatically executable and all defences and applications filed by the legal heirs of the deceased defendant no.2 shall stand automatically dismissed.
It is clarified that this Court has not gone into the rival contentions of the parties or the merits of the proceedings pending in the Court below in any form and the deposit made hereinabove shall be without prejudice to any of the rights and contentions of either of the parties under the law.
The order dated 18th July, 2017 in Misc. Case No.143 of 2017 arising out of Ejectment Execution No.136 of 2016 passed by the learned Fourth Bench, Presidency Small Causes Court at Calcutta is hereby set aside only insofar as it has only gone into the maintainability of the Section 47 application. The said application, as already directed hereinabove, shall be heard on merits and strictly in accordance with law, including the question of fraud.
C.O.2890 of 2017 has been rendered infructuous in view of the order passed hereinabove in C.O.2383 of 2017 and the same is, accordingly, disposed of.
Urgent photostat certified copies of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Rajasekhar Mantha, J. )