Calcutta High Court (Appellete Side)
Mr vs N. Misra on 17 December, 2013
1 S/L. 2.
December 17, 2013.
MNS.
C. O. No. 806 of 2013 Mr. V. N. Misra ...for the plaintiffs-opposite parties.
None appears for the defendant-petitioner when the matter is called on.
Mr. V. N. Misra, learned advocate, appears for the plaintiffs- opposite parties.
The present revisional application arose from an order dated February 2, 2013 passed by the learned Civil Judge(Senior Division), Fourth Court at Alipore, District- South 24-Parganas, in Miscellaneous Case No. 369 of 2011.
The opposite parties, as plaintiffs, filed a suit for ejectment in which the defendants entered appearance and sought for time repeatedly for filing written statement, but ultimately no written statement was filed.
The learned court below passed an ex parte decree. Against the said ex parte decree, the defendant-petitioner filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, which was registered as Miscellaneous Case No. 369 of 2011.
In the said miscellaneous case the defendant-petitioner filed an application for stay praying for stay of the execution case, which was pending before the learned court below.
From the order impugned it appears that the defendant- petitioner and the petitioner in the miscellaneous case took steps for service of the application filed under Order IX, rule 13 of the Code of 2 Civil Procedure(hereinafter referred to as the Code), but on the date of hearing, that is, February 2, 2013, no service return was received by the court below.
The learned court below observed that since February 2, 2013 was fixed for hearing the application under Order IX, rule 13 of the Code, the same should be rejected on the ground that no application under Section 151 of the Code is maintainable.
It appears from the order impugned that although the court observed that service return did not come back on the date of passing the impugned order but without awaiting for service return the court passed the impugned order and rejected the application itself.
I do not agree with the learned judge in passing the impugned order rejecting the application under Section 151 of the Code holding it to be not maintainable.
The order impugned is, therefore, set aside.
However, since the plaintiffs-opposite parties have, already, obtained a decree and execution case is still pending, the defendant should not be given any indulgence to delay the proceeding, particularly, Miscellaneous Case No. 369 of 2011.
I, therefore, request the learned court below to dispose of the Miscellaneous Case No. 369 of 2011 as expeditiously as possible but preferably within a period of six months from date.
In order to get an expeditious disposal of the said miscellaneous case, the learned advocate appearing for the plaintiffs-opposite parties in the present revisional application submits that he will take steps to enter appearance in the said miscellaneous case and in the event such appearance is made, the defendant-petitioner is directed to serve copy of the application under Order IX, rule 13 of the Code as also all other connected applications filed in connection with the said miscellaneous 3 case within a period of fifteen days from the date of communication of this order.
The revisional application is, thus, allowed with the aforesaid directions.
Although no one appears for the petitioner but to meet the ends of justice, I direct that there shall be an order of stay of all further proceedings in Ejectment Execution Case No. 51 of 2011 pending in the court of the learned 4th Civil Judge (Junior Division), Alipore, till the disposal of the Miscellaneous Case No. 369 of 2011 pending before the same learned court.
I make no order as to costs.
The office is directed to supply photostat certified copy of this order to the applicant, if applied for, on urgent basis.
(Sahidullah Munshi, J.)