Calcutta High Court (Appellete Side)
Sekhar Nath Majumder vs Asutosh Das & Ors on 23 February, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 (14) 23.02.2017
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE CO No. 4586 of 2016 Sekhar Nath Majumder
-versus-
Asutosh Das & ors.
Ms. Runu Choudhuri Ms. Mekhla Sinha ... for the petitioner This revisional application is directed against the order dated August 10, 2016 passed by the learned IV Bench, Small Causes Court at Calcutta in Ejectment Execution Case No. 143 of 2015, arising out of Ejectment Suit No. 494 of 2012. By the impugned order, the learned Court below rejected the application filed by the petitioner, the decree holder in the eviction suit, under Section 151 of the Code of Civil Procedure (in short "the Code") to amend the schedule of the suit property in the eviction decree passed in the above suit.
Since the opposite parties did not contest the eviction suit, the petitioner was not required to serve copies of this revisional application on them.
It is submitted on behalf of the petitioner that the opposite parties, as the defendants in the suit, did not contest the eviction suit and after the decree for eviction passed by the learned Court below when the Court bailiff went to execute the eviction decree, he found certain discrepancies in the description of the suit property and, as such, he could not execute the decree for eviction. 2 According to the petitioner, since there is no dispute with regard to the identity of the suit property and there is only misdescription of the suit property an application was filed before the learned trial Court for rectification of the description of the suit property in the eviction decree. However, by the impugned order, the learned Court below rejected the prayer of the petitioner for amendment of the schedule of the suit property to describe the suit property correctly on the ground that the suit was decreed ex-parte, the Court had become functus officio.
In the present case the opposite parties were served with the writ of summons of the eviction suit, they did not dispute the identity of the suit property and let the suit be decreed ex- parte. Even after the Court bailiff visited the Premises No. 18, Kailash Bose Street none of the opposite parties approached the learned Court below seeking any relief against the eviction decree. From the application filed by the petitioner under Section 151 of the Code it cannot be said that in this case what is sought to be rectified by the petitioner is not misdescription of the suit property in the eviction decree. It is settled law that a wrong description of the suit property in an eviction decree can be rectified by allowing an application filed by the plaintiff landlord under Sections 151 and 152. If an authority is sought for in support of such view, the same can be found in the decision of the Supreme Court in the case of Tiko (Smt.) & Ors. vs. Lachman, reported in 1995 Supp. (4) SCC 582 which was followed by a learned Single Judge of this Court in the case of Tapas Guha vs. Angurbala Das, reported in 2009(2) CLJ (Cal) 11.
Having considered the facts of the case, I find that the petitioner is entitled to obtain the eviction decree being rectified to describe the schedule of the suit property correctly.
For the reasons as aforesaid, the learned Court below fell into an error of law in passing the impugned order rejecting the prayer of the petitioner to rectify the eviction decree passed in the ejectment suit the impugned order and the same cannot be sustained. Accordingly, the impugned 3 order dated August 10, 2016 passed by the learned IV Bench, Small Causes Court at Calcutta in Ejectment Execution Case No. 143 of 2015, arising out of Ejectment Suit No. 494 of 2012 is set aside and the application of the petitioner for amendment of the eviction decree is allowed.
The learned Court below is directed to amend the eviction decree dated July 6, 2015 passed in Ejectment Suit No. 494 of 2012 within a period of two weeks from the date of communication of this order and thereafter to proceed with the execution case No. 143 of 2015.
The petitioner will be entitled to execute the amended eviction decree by filing fresh execution application.
With the above directions, CO 4586 of 2016 stands disposed of. However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the party, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)