RAJAT MOHAN CHATTERJEE Vs. AMITABH BANERJEE

JUDGEMENT

(1.) -This application under Article 227 of the Constitution of India has been directed against the order dated 28.1.99 passed by the learned Additional District Judge, 4th Court, Alipore, 24 Parganas (South) in Civil Revision No. 139 of 1997 arising out of Misc. Case No.4 of 1997.

(2.) The petitioner herein filed a Title Suit No.243 of 1972 in the Court of 2nd Munsif at Alipore praying for aviation of the respondent from the suit premises at 58/F Hindusthan Park, P.S. Gariahat, 1st floor. That suit was decreed. The respondent preferred appeal before the learned Subordinate Judge, 5th Court, Alipore and the Title Appeal No. 1051 of 1977 was disposed of on 14.2.78 affirming the Judgment of the trial Court. The operation of the Judgment of the 1st Appellate Court was, however, stayed till 30.3.78 as the appellant/judgment-debtor wanted to prefer second appeal. In the meantime, the decree-holder put the decree into execution long before the disposal of the first appeal and title execution No.72 of 1977 was pending. As soon as the title appeal No.1051 of 1977 was dismissed the execution case was set into motion again and the judgment-debtor/respondent prayed for 6 weeks time to bring the stay order from the High Court. The executing court by order No.15 dated 6.3.78 passed in title execution case No.72 of 1977 rejected the application for staying execution by observing:

(3.) The second appeal was also summarily dismissed by the Division Bench of the High Court by its order-dated 17.11.78 and the injunction petition filed therein was also dismissed. The judgment-debtor had not taken any further steps for 8 years and thereafter in 1986 filed a Title Suit before learned Munsif, 2nd Court, Alipore and the said suit was numbered title suit No.71 of 1986 for getting back the possession but the same was also dismissed in 1995. Against that order of dismissal title appeal No.22 of 1996 was preferred before the learned Assistant District Judge, 7th Court, Alipore and the said appeal was also dismissed but the learned Court observed that the writ of delivery of possession was issued by mistake during the period when there was stay of operation of the order till 30.3.78. The learned Court also observed that "under section 151 CPC Court can rectify its own mistake and there is no limitation for invoking inherent powers." The Court also observed that appellant's remedy was in filing an application under section 47 CPC in execution case but not filing a separate suit. Being inspired by such observation while disposing of title appeal No.22 of 1996 by judgment dated 9.5.96 the respondent filed a Misc. Case No.4 of 1997 under section 47 CPC. The Misc. case was also dismissed by learned munsif by order-dated 21.3.97. Against that order dated 21.3.97 the Civil Revision was preferred being Civil Revision No.139 of 1997 and the same was disposed of by Additional District Judge, 4th Court, Alipore by its order dated 28.1.99 whereby the learned Judge held the writ of delivery of possession was issued illegally in spite of stay order of the Appellate Court and so he passed the following order: