Calcutta High Court (Appellete Side)
(Sridhar Basu Mallick vs Smt.Kamala Sadhukhan on 31 January, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 03 31.01.2019
C.O. 4142 of 2016 Ct.
25
(Sridhar Basu Mallick vs. Smt.Kamala Sadhukhan pg & Ors.) Mr. Gopal Chandra Ghosh........for the petitioner The petitioner is the judgment-debtor in Ejectment Execution Case No. 119 of 2008, which was filed by the decree holders/opposite parties for execution of an ex parte decree passed in Ejectment Suit No. 736 of 1989, which was decreed on April 19, 2009.
The judgment-debtor/petitioner filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (hereafter described as 'C.P.C.') before the trial court, which was registered as Misc. Case No. 120 of 2008. By an order dated April 17, 2015 , the aforesaid Misc. Case under Order 9 Rule 13 of the C.P.C. was allowed by the learned trial court. The said order was challenged by the decree holders/opposite parties by filing a revisional application before this court, which was registered as C.O. 2980 of 2015. By an order dated September 18, 2015, a coordinate Bench of this court allowed the aforesaid revision and thereby set aside the order of restoration of the suit passed by the trial court below in the proceeding under Order 9 Rule 13 of the C.P.C.
On perusal of the copy of the order dated September 18, 2015 passed in C.O. 2980 of 2015, it is ascertained that the judgment-debtor/petitioner was not even heard while disposing of the said revision and the same was disposed of ex parte. Against the said order dated September 18, 2015 the petitioner filed an application for review, which has been registered as 2 R.V.W. 297 of 2015 and is pending before this court.
In the meantime, the said opposite parties filed an application under Order 21 Rule 97 of the C.P.C. before the learned executing court praying for police help. Though the judgment-debtor/petitioner entered appearance in the said execution case, he was not served with a copy of the application under Order 21 Rule 97 of the C.P.C. However, the judgment debtor filed a written objection against the aforesaid petition under Order 21 Rule 97 of the C.P.C.
The said application, which was registered as Misc. Case No. 248 of 2008 came up for hearing before the learned executing court on September 20, 2016 on which date an adjournment was sought for on behalf of the judgment-debtor.
The grievance of the petitioner is that the learned executing court refused to grant adjournment of the hearing of Misc. Case No. 248 of 2008 and closed the argument of both sides without hearing the judgment- debtor. Next date was fixed on November 18, 2016 for order. However, it is learnt from the submission of Mr. Ghosh, learned advocate appearing on behalf of the judgment-debtor/petitioner that no order has yet been passed by the learned executing court.
It is urged by Mr. Ghosh that the opposite parties may be given an opportunity to take part in the hearing of Misc. Case No. 248 of 2008 arising out of an application under Order 21 Rule 97 of the C.P.C.
It will not be out of place to mention here that the opposite parties were duly served and Mr. Asit Kr. 3 Chowdhury, advocate filed vakalatnama on behalf of the opposite parties. However, when the matter is taken up for hearing today, the learned advocate for the opposite parties is found absent and this court, finding no other alternative, is to proceed hearing with the instant revision in the absence of the learned advocate for the opposite parties.
It is already mentioned that the judgment- debtor/petitioner wants audience in Misc. Case No. 248 of 2008 arising out of an application under Order 21 Rule 97 of the C.P.C. filed by the decree holders/opposite parties for police help.
Well-settled is the principle that every lis ought to be disposed of after hearing both the parties. When on September 28, 2016 the judgment- debtor/petitioner was duly represented by his learned advocate, learned executing court ought to have given an opportunity to the learned counsel for the judgment- debtor/petitioner to place his argument against the application under Order 21 Rule 97 of the C.P.C.
Without giving such opportunity, I am of the view that the learned executing court failed to exercise its jurisdiction vested in law and therefore the order dated September 20, 2016 cannot sustain.
For the reasons aforesaid, the instant revision is allowed. The order dated September 20, 2016 passed in Misc. Case No. 248 of 2008 arising out of Ejectment Execution Case No. 110 of 2008 is set aside.
However, it is made clear that the learned executing court will be at liberty to take all endeavour to 4 dispose of the Misc. Case No. 248 of 2008 at the earliest without giving any adjournment to either of the parties, especially the judgment-debtor/petitioner.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
(BIBEK CHAUDHURI, J.)