Calcutta High Court (Appellete Side)
1790/2015 on 7 August, 2015
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
1 2015 C.O. 1790 of 2015 Mr. Kashinath De, Mr. Sandip De ......For the Opposite Parties.
None appears for the petitioners even on the second call. The hearing of the matter was completed on 17.07.2015 on which date the petitioners were directed to place a copy of their application under section 47 of the Code of Civil Procedure filed in the Learned Court Below, which direction was complied with on the last date.
In this revisional application, the petitioners have challenged the order passed by the Learned 3rd Bench, City Civil Court, at Calcutta in Misc. Case No. 3317 of 2014 arising out of the Execution Case filed on behalf of the opposite parties.
The contention of the petitioner was that the decree of ejectment granted in favour of the decree- holders/ opposite parties was a nullity and, therefore, inexecutable, since while the petitioner / judgement debtor had been declared to be defaulter in his capacity as tenant, yet there was no specific averment to that effect in the original plaint.
It is, however, a matter of record that the decree in the original Ejectment Suit No. 359 of 1979 was passed after the defence of the petitioner against delivery of possession was struck out, on 28th June, 1982.
The petitioner thereafter filed first appeal being F.A. No. 180 of 1986 in this Court, which was ultimately dismissed on contested hearing on 3rd February, 2011.
2Consequently, the Ejectment Execution Case No.98 of 1985 filed on behalf of the decree holders/ opposite parties way back in 1985, which had been stayed all along during the pendency of the appeal was revived.
The Learned Execution Court was directed earlier by this Court in C.O. 2398 of 2013 to dispose of the Execution Case within six months. Thereafter, the decree holder's application for execution with police help was also allowed. However, in the meantime, the petitioner/ judgement debtor filed his application under Section 47 of the Code of Civil Procedure, which was dismissed by the Executing Court on 24th March, 2015 with punitive costs amounting to Rs 5,000/-.
It is a matter on record that no party involved in the suit was dead at the relevant time of passing of the decree. There is also no dispute that the Learned Trial Court did have the requisite civil jurisdiction to entertain the suit for ejectment and decide the same. As such, clearly the decree could not have been considered as a nullity under any circumstances particularly after even the Appellate Court had dismissed the appeal preferred against the same also most 30 years later.
The Learned Court below was also perfectly justified in rejecting the application under Section 47 of the C.P.C. on the reasoning that it could not go into any alleged irregularities behind the decree.
In the given circumstances, this Court finds no merit in the present revisional application, which is, therefore, dismissed without costs. 3
Urgent Photostat Certified Copy of this order, if applied for, be given to the parties on compliance of usual formalities.
( Sudip Ahluwalia, J ) 4 5