SULEKHA NAG Vs. PRANATI BANERJEE

JUDGEMENT

(1.) Challenge is to the order dated August 27, 2008 passed by the learned Judge, S.C.C. Court at Sealdah in the Misc. Appeal No.62 of 2007 thereby setting aside the order no.35 dated July 19, 2007 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in the Misc. Case No.31 of 2006, arising out of the Title Suit No.222 of 2003 of the First Court of learned Civil Judge (Junior Division) at Sealdah.

(2.) he decreeholder has filed this application for setting aside the order dated July 19, 2007 passed in the Misc. Case No.31 of 2006. He obtained an ex parte decree for recovery of possession. 2 Thereafter, the judgment debtors filed an application under Order 9 Rule 13 of the C.P.C. which was registered as Misc. Case No.31 of 2006. That misc. case was rejected by the learned Civil Judge by the order dated July 19, 2007. Being aggrieved by that order, the judgment debtors preferred a misc. appeal being Misc. Appeal No.62 of 2007 which was allowed by the impugned order thereby setting aside the order dated July 19, 2007 passed in the Misc. Case No.31 of 2006 and also the ex parte decree passed in the Title Suit No.222 of 2003 with costs. Being aggrieved by that order, the decreeholder has preferred this revisional application. Now, the point for consideration is whether the impugned order should be sustained.

(3.) Upon hearing the learned Counsel for the parties and on going through the written argument filed by the learned Advocate for the petitioner and also the materials on record, I find that admittedly, the Title Suit No.222 of 2003 was decreed ex parte on May 11, 2005. Thereafter, the judgment debtors preferred a Misc. Case No.31 of 2006 which was rejected by the learned Trial Judge. Thereafter, the judgment debtors preferred the Misc. Appeal No.62 of 2007 which was allowed by the impugned order. The contention of the decreeholder is that the learned Trial Judge has rightly observed that there was no irregularity in the matter of service of summons upon the judgment debtors. It is the stand of the judgment debtors that they did not receive summons at all. The 3 findings of the learned appellate court in this regard cannot be accepted. The learned appellate Court has also failed to consider that the judgment debtors could not show sufficient cause for nonappearance at the time of call.