LAVANYA BHATTACHARYA Vs. UTTMALENDU BHATTACHARYA

JUDGEMENT

(1.) Heard Sri Vishnu Gupta, learned counsel for the petitioners; Sri H.R. Mishra, learned senior counsel assisted by Sri V.R. Dwivedi for the respondents; and perused the record.

(2.) The present petition has been filed challenging the orders dated 25th November, 2015 and 7th April, 2017, passed by Additional Civil Judge, Court No.11, Allahabad in Misc. Case No.11 of 2014 and Additional District Judge, Room No.14, Allahabad in Misc. Civil Appeal No.13 of 2016, respectively.

(3.) An Original Suit No.978 of 2008 was instituted by the plaintiff-respondent no.1 against his own brothers, namely, Nilendu Bhattacharya (defendant no.1) and Ashok Bhattacharya (defendant no.2-Proforma respondent no.2 in the present petition) for mandatory injunction seeking eviction of defendant no.1. During the pendency of the suit, on 26th November, 2011 the defendant no.1 died. For substitution of his heirs and legal representatives, it appears, a substitution application was filed. On the said substitution application, notices were issued by ordinary post as well as by Registered Post to the proposed heirs and legal representatives. The said notice was deemed served upon the proposed heirs and legal representatives by way of refusal. Thereafter, vide order dated 28th May, 2012 the substitution application was allowed. After allowing the substitution application again the Court issued notice to the substituted heirs and legal representatives of defendant no.1. The said notice was refused to be accepted, as a result, the Court proceeded to pass order on 4th September, 2012 holding that service of notice upon the defendants was sufficient. On 12th October, 2012, the Court directed the case to proceed ex-parte against the defendants. Thereafter on 31st May, 2013, an ex-parte decree was passed. This ex-parte decree was put to execution vide execution case no.1 of 2013. In the said execution case, notice on the judgement-debtor Smt. Lavanya Bhattacharya (petitioner no.1) was served on 11th September, 2013 personally. She is one of the heirs and legal representative of deceased-defendant no.1. Thereafter, on 20th September, 2013, Sontu Bhattacharya (petitioner no.2), who happens to be son of Lavanya Bhattacharya (wife of deceased-defendant no.1), applied for obtaining certified copy of the judgement and decree passed in Original Suit. On 28th October, 2013, an application was filed for setting aside the ex-parte decree. The said application was accompanied by application 4 C, seeking condonation of delay under Section 5 of the Limitation Act.