ARATI SIKDAR Vs. STAYA RANJAN KUNDU

JUDGEMENT

(1.) Legality, validity and propriety of an order being order No.20 dated 24th December, 2019 passed by the learned Civil Judge (Senior Division), Small Causes Court at Sealdah in Misc Case No.30 of 2018 arising out of Title Execution Case No.1 of 2016 is challenged by the legal heirs and representatives of defendant No.7, since deceased invoking the jurisdiction of this Court under Article 227 of the Constitution of India.

(2.) Suffice it to say that the opposite parties as plaintiffs instituted a suit for eviction, recovery of khas possession and also for mesne profit against the defendants in the court of the learned Civil Judge (Senior Division) at Sealdah which was registered as Title Suit No.183 of 2010, since renumbered as Title Suit No.14 of 2015. The said suit was filed against 16 numbers of defendants. It was alleged by the plaintiffs that they became the owners of the suit land with a kutcha tin shed structure thereon. The defendants took forcible possession of the said kutcha tin shed structure in or about March 2009. It was alleged by the plaintiffs that the defendants were in wrongful possession of the suit property and accordingly they were liable to be evicted. The suit was decreed on contest against the defendants on 8th February, 2016. The said decree was put in execution which was registered as Title Execution Case No.1 of 2016. During the pendency of the suit it was pointed out to the opposite parties that the defendant No.7 died long ago and consequently the opposite parties filed an application for substitution under Order 22 Rule 4 of the Code of Civil Procedure along with an application for condonation of delay. The said application was registered as Misc Case No.13 of 2011. However, the opposite parties did not press for hearing of the said application and it was dismissed by the learned trial court vide order No.55 dated 9th December, 2014. Ultimately, in the execution case, the legal heirs and representatives of the said deceased defendant No.7 filed an objection against the executability of the decree under Section 47 of the Code of Civil Procedure contending, inter alia, that the decree is inexecutable and nullity being passed against a dead person, viz defendant No.7.

(3.) The said application under Section 47 of the Code of Civil Procedure was registered as Misc Case No.30 of 2018 by passing the impugned order dated 24th December, 2019 the learned Judge in the executing court rejected the application under Section 47 of the Code of Civil Procedure on contest and dismissed the Misc Case.