ASHIM KUMAR BANERJEE Vs. RADHARANI MALLICK

JUDGEMENT

(1.) THIS application is directed against the Order no.316 dated April 25, 2003 and June 16, 2008 passed by the learned Civil Judge (Senior Division), 7th Court, Alipore in Misc. Case No.22 of 1998 and Misc. Case No.10 of 2003 respectively.

(2.) THE short fact necessary for the purpose of disposal of this application is that the predecessor-in-interest of the petitioner, namely Lilabati Banerjee, instituted a suit being Title Suit No.168 of 1967 for partition claiming one-fifth share in the suit property as described in the schedule of the plaint. THE said suit was renumbered subsequently as Title Suit No.173 of 1968 and it was decreed in the preliminary form on March 13, 1968. THEreafter, the heirs of the original plaintiff, that is, the petitioner and others filed an application under Section 4 of the Partition Act for pre-emption and that application was converted into the Misc. Case No.8 of 1988. That Misc. case was allowed ex parte on March 14, 1992. THEreafter, the said suit was decreed in the final form on December 4, 1995. THEn an execution case bearing Execution Case No.7 of 1995 was initiated for execution of the final decree. THE possession of the property under pre-emption was delivered to the pre-emptor by evicting Smt. Radharani Mallick, that is, the predecessor-in-interest of the opposite parties on September 7, 1996. THEreafter Smt. Mallick filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte order dated March 14, 1992 passed in Misc. Case No.8 of 1998 and that application was converted into the Misc. Case No.40 of 1996.

(3.) UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the facts as stated above, are not in dispute at all. By the earlier order dated April 25, 2003, the learned Trial Judge rejected the application under Section 151 of the C.P.C. filed by Lilabati Devi for setting aside the ex parte order passed in Misc. Case No.22 of 1998. As per order No.105 dated July 11, 1997 in Misc. Case No.22 of 1998, on consent of both the sides, the service of summons upon the opposite party nos.4 to 10 was dispensed with. Subsequently, in the Civil Revision Case No.3123 of 1998, the Hon?ble Court has observed that the order was passed of the Civil Revision Case in the presence of Lilabati Devi. Thereafter, the learned Trial Judge has observed that the ground of non-service of summons upon Lilabati Devi could not be believed.