SABITRI BALA MULLICK Vs. ALAK RANJAN PAUL

JUDGEMENT

(1.) This second miscellaneous appeal stems from a proceeding under section 47 of the Code of Civil Procedure.

(2.) The facts and circumstances leading to the instant appeal are as follows: - Fakir Chandra Pal, the predecessor-in-interest of the contesting respondents, instituted a Title Suit, being No.2000 of 1964 in the file of Munsif, Ghatal, seeking declaration of his title in respect of the lands described in the three schedules (Ka, Kha & Ga) of the plaint. He also prayed for confirmation of possession in respect of the lands described in schedules 'Ka' and 'Kha' and recovery of possession in respect of schedule 'Ga' in the plaint, which is a part of ?Ka' schedule. The suit was decreed by the trial court on June 25, 1966. Satya Sadhan Mullick, the defendant No.1 in the suit and the predecessor-in-interest of the petitioners herein, preferred an appeal against the same and the learned Subordinate Judge, First Court, Midnapur, allowed the appeal, remanded the case back with necessary directions for re-hearing. On remand the suit was against decreed by the learned Musnif, Ghatal on March 29, 1968. Satya Sadhan Mullick again preferred an appeal and the Additional District Judge, Second Court, Midnapur, dismissed the appeal on December 14, 1968. Aggrieved thereby Satya Sadhan preferred an appeal to this Court which was ultimately dismissed on July 2, 1975.

(3.) During the pendency of the second appeal in this Court, the plaintiff-decree-holder filed an execution case, being Title Execution Case No. 8 of 1969 before the Munsif, Ghatal, for realization of decretal dues of the suit and of the first appeal by selling the movable properties of the judgment-debtor. Pursuant thereto a writ of attachment of movable properties was taken out on April 8, 1969 but it was returned unserved. Satya Sadhan, the judgment-debtor, entered appearance in the execution case on April 23, 1969 and prayed for stay of the execution case pending disposal of the second appeal. On June 19, 1971 the decree-holder filed an application for amending the execution petition by deleting the prayer for sale of movables and substituting therefore sale of immovable properties of the judgment-debtor and the amendment was allowed by an order passed on the self-same day. On July 6, 1971 an application for further amendment of the execution petition was filed by incorporating a prayer for recovery of possession of the properties described in 'Ka', 'Kha' and 'Ga' schedules of Title Suit No. 200 of 1964 without, however, serving any copy of the same upon the judgment-debtor. This application was allowed exparte by the executing court by its order No. 9 dated July 5, 1971. On August 6, 1971, the decree-holder filed another application for stay of the execution case and this application was also allowed exparte on August 11, 1971. Surprisingly however, the executing court by its order No.14 dated August 17, 1971 issued a writ for delivery of possession in spite of the earlier stay order.