Calcutta High Court (Appellete Side)
For The vs Saktipada Bag & Ors.) In Support Of His on 28 June, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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28.6.2011 C.O.1822 of 2011
Mr. R. Chowdhury, Advocate
Mr. T. Das, Advocate
...for the petitioner
Mr. S. Banerjee, Advocate
Mr. M. Sajjan,
Mr. P.C. Mitra
...for the opposite party no.1
The opposite party no.1 instituted Ejectment Suit
No.2198 of 2000 against the petitioner on the ground that he
had sublet portion of the premises in respect whereof he was
inducted as a tenant. The suit was dismissed. The opposite
party no.1 preferred Title Appeal No.55/05. The learned
Judge of the 5th Bench of the City Civil Court at Calcutta
heard the appeal ex parte, since none appeared on behalf of
the defendant/respondent (petitioner herein) to contest it. By
judgment dated February 28, 2006, the appeal was allowed thereby setting aside the judgment and decree under appeal and the suit was decreed.
The opposite party no.1 thereafter put the decree in execution, giving rise to Ejectment Execution Case No.168/06. The decree was sought to be executed and the bailiff had been to the decretal premises for delivering possession thereof to the opposite party no.1 but such attempt was allegedly thwarted. Hence, in connection with 2 the said execution case, the opposite party no.1 filed an application under Order 21 Rule 97 of the Code of Civil Procedure only against the opposite party no.2, giving rise to Misc. Case No.259/06. It was alleged in such application that it was the opposite party no.2 who had resisted the Court bailiff to execute the decree for recovery of khas possession passed against the petitioner and thereby, possession of the decretal premises could not be delivered.
The petitioner, having come to learn of the ex parte appellate judgement and decree in the meanwhile, filed an application under Order 41 Rule 19 of the Code praying for recall of the same, giving rise to Misc. Case No.687 of 2006. By order no.19 dated February 15, 2008, the said misc. case was dismissed for default. An application for recalling the order dated February 15, 2008, filed by the petitioner on March 3, 2008 is pending.
In connection with Misc. Case No.259/06, the petitioner had filed an application for addition of party under Order 1 Rule 10(2) of the Code. The application was heard on contest and by an order dated April 29, 2011, it was rejected as not maintainable.
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The order dated April 29, 2011, is the subject matter of challenge in this application under Article 227 of the Constitution.
Mr. Chowdhury, learned advocate appearing for the petitioner, contends that the learned Judge passed the impugned order on wrong conception of law. According to him, proceedings initiated on an application under Order 21 Rule 97 of the Code are miscellaneous proceedings and in view of Section 141 of the Code, procedures governing suits shall apply to miscellaneous proceedings. The learned Judge failed to consider that in the event the decree passed against the petitioner is executed in pursuance of an order in Misc. Case No.259 of 2006, the petitioner despite having taken steps to challenge the decree would stand immensely prejudiced and suffer irretrievable loss and injury. He referred to the decision reported in 2009 (2) CLJ (Cal) 719 (Nandalal Ghosh v. Saktipada Bag & ors.) in support of his submission, wherein it has been ruled by a learned Judge of this Court that the obstructionist including the judgment debtor should also be given an opportunity to file written objection to the application for police help. 4
He, accordingly, prayed for setting aside of the order impugned and for a direction on the executing Court to implead him as respondent in Misc. Case No.259/06.
Mr. Banerjee, learned advocate for the decree holder/opposite party no.1, has opposed the application. According to him, the opposite party no.1 was obliged, in terms of Order 21 Rule 97 of the Code, to implead only such person who resisted execution of the decree and that person being the opposite party no.2 was impleaded as respondent. Since the petitioner did not resist execution of the decree, he was not impleaded as respondent.
In support of his submission Mr. Banerjee placed reliance on the decision of learned Judges of this Court reported in AIR 1975 Cal 433 (Mrs. Ajit Kumar Ray v. Jnanendra Nath Dey and others) and 2003(2) CHN 340 (Dwarikanath Chowdhury & ors. v. Sadananda Chowdhury & ors.).
He, accordingly, prayed for dismissal of this application.
I have heard learned advocates for the parties and considered the rival claims.
It is not in dispute that the appeal filed by the opposite party no.1 was allowed ex parte. Whether or not the 5 petitioner was served with notice of appeal or deliberately abstained from contesting the proceedings in the appellate Court could have been decided by the appellate Court while disposing of Misc. Case No.686/2007 on its merit. However, it was dismissed in the absence of the petitioner on February 15, 2008 and it is not in dispute that an application for recalling the order dated February 15, 2008 has been filed on March 3, 2008. I have been informed that July 15, 2011 is the next date of hearing of the application for recall.
In my considered view, a decision on the recalling application ought to be awaited in order to obviate future complications in the matter and also to ensure that a party is not condemned unheard. Without expressing any view on the merits of the rival claims at this stage and while adjourning this application till July 22, 2011 for passing further order, I direct the learned Judge of the 5th Bench of the City Civil Court at Calcutta or the Judge-in-charge of that Bench to hear the recalling application filed by the petitioner without granting adjournment to either of the parties and to give his decision on July 15, 2011 itself, if possible. If for any reason the decision cannot be given on July 15, 2011 itself, the learned Judge may endeavour to give his decision thereon immediately thereafter but not beyond July 20, 2011. If for 6 some unavoidable reason the recalling application cannot be heard on July 15, 2011, it may be heard on the following working day.
The order passed on the recalling application must be produced by the parties before this Court on the next date of hearing.
The application is heard-in-part.
Office is directed to communicate this order to the learned Judge of the 5th Bench of the City Civil Court at Calcutta by special messenger, costs wherefor shall be put in by the petitioner in course of Thursday next.
Let a photocopy of this order be issued to the learned advocate for the opposite party no.1, duly countersigned by the Assistant Registrar (Court), on the usual undertaking.
(DIPANKAR DATTA, J.)