DALIA MITRA Vs. GITA DAS

JUDGEMENT

(1.) THIS application is at the instance of the appellant and is directed against the order dated January 3, 2011 passed by the learned Chief Judge, City Civil Court, Calcutta in Misc. Appeal No.11 of 2010 arising out of the Misc. Case No.128 of 2009.

(2.) THE short fact necessary for the purpose of disposal of this application is that the respondents/opposite parties herein filed an application for execution of a decree for ejectment being Ejectment Execution Case No.113 of 2002. In that execution proceeding, the petitioner appeared and filed an application under Order 21 Rule 101 read with Section 151 of the C.P.C. contending, inter alia, that the decree passed in the Ejectment Suit No.297 of 1981 by the learned Judge, Eleventh Bench, City Civil Court, Calcutta is illegal, void, inoperative and not binding upon the petitioner on the ground that the said decree had been obtained by practising fraud upon the Court. That application was converted into the Misc. Case No.128 of 2009. It was contested by the opposite parties. Ultimately, the said misc. case was dismissed on contest with costs of Rs.500/- holding that the same is not maintainable in its present form and law. Being aggrieved, the petitioner preferred a misc. appeal being Misc. Appeal No.11 of 2010 which was also dismissed by the learned Chief Judge, City Civil Court, Calcutta. Being aggrieved, the petitioner has preferred this revisional application.

(3.) THEREAFTER, the misc. appeal preferred against the said order of dismissal of the application under Order 21 Rule 101 of the C.P.C. was also dismissed. Thus, I find that the husband of the petitioner was not a stranger to the suit filed by the decreeholders. He was also a tenant under the landlords in the said suit for ejectment. The husband entered appearance in the said suit but did not contest the suit at all. As such, when the decree for ejectment was passed, the other tenants while preferred a first appeal being F.A. No.40 of 1993 the husband of the petitioner was made the proforma respondent, but, he did not contest the said first appeal. The other tenants including the husband of the petitioner, namely, Sachipati Nath Mitra are full brothers and they were on the same footing as tenants. The brothers of Sachipati Nath Mitra while filed the appeal made Sachipati Nath Mitra as proforma respondent inasmuch as he did not take any interest in the matter. Subsequently, during pendency of the first appeal, Sachipati Nath Mitra died. It was incumbent upon the other appellants to substitute the legal heirs of the said deceased proforma respondent. But they did not do so. But the petitioner came up to resist the writ of delivery of possession when the decree was going to be executed. This is nothing but a collusion between the other tenants and the petitioner to frustrate the execution of the decree. Here the allegation of the petitioner is that there was a collusion between the other tenants and the decreeholders, but, this contention, I hold, cannot be believed at all. The other tenants had full knowledge of the death of Sachipati Nath Mitra. But the other tenants, that is, the appellants did not take any step for substitution in the said appeal. It may be pointed out that the original suit was decreed on March 9, 1991. The judgment debtors preferred an appeal before the Honble Court against the said judgment and decree and the appeal was dismissed after contested hearing on January 21, 2008.