DUNIA LAL DATTA Vs. NAGENDRA NATH DATTA

JUDGEMENT

(1.) The present suit was instituted by the plaintiff against the defendants for adjudication that the decree passed in T. Suit No. 451 of 1971 by the learned 9th Bench, City Civil Court at Calcutta and registered on 7-2-1974 was void, inoperative and not binding upon the plaintiff, for an order that the said registered decree be delivered up and cancelled, injunction etc. The circumstances under which the suit was instituted will appear from the short list of dates set out below. Aug. 1946 -- The defendant No. 2 Balai was inducted as a tenant by the defendant No. 1 Nagendra in respect of premises No. 50 Doctor Lane, Calcutta. Nagendra was the owner of this property. 9th Spet. 1946 -- A deed of sale was executed by Nagendra in favour of Balai in respect of the premises No. 50 Doctor Lane to avoid creditors. Nagendra alleged that the deed was a benami transaction. 5th June 1971 -- T. Suit No. 451 of 1971 was instituted by Nagendra against Balai for declaration that the deed executed on 9-9-1946 in favour of Balai was invalid, inoperative and was never acted upon. The plaintiff ih the present suit, Dunialal, was not a party to the said suit. 1971 _ Dunialal filed T. Suit No. 676 of 1971 against Balai in the City Civil Court for partition of the premises No. 50. Doctor Lane. Nagendra was not a party to the said suit. 12th Sept. 1973 -- A decree was passed in the said T. Suit No. 451 of 1971 on contest declaring the deed dated 9-9-1946 was invalid, inoperative etc. 8th Feb. 1974 -- Nagendra again filed another T. Suit No. 176 of 1974 against Balai and Dunialal for their eviction from the premises No. 50, Doctor Lane and for recovery of possession on the allegation that Balai had surrendered the tenancy on 6-1-1974 and had informed Nagendra that Dunialal was in wrongful occupation of the said property. Balai contested the said suit but Dunialal did not enter appearance, did not contest the suit. 2nd Jan. 1975 -- In T. Suit No. 176 of 1974 a decree for eviction was passed on contest against Balai and ex parte against Dunialal -- the present plaintiff. Thereafter Nagendra started execution Case No. 21 of 1975 for evicting Balai and Dunialal. April 1975 -- In execution of the decree in T. Suit No. 176 of 1974, Nagendra started another Misc. Case No. 329 of 1975 for possession with the help of police. 11th April 1975 -- A partition decree was passed in Dunialal's partition Suit No. 676 of 1971. 21st April 1975 -- Another Misc. Case No. 331 of 1975 arose as Dunialal took out an application under Order 9. Rule 13 of the C. P. C. for setting aside the ex parte decree dated 2-1-1975 against him in Suit No. 176 of 1974. 16th Sept. 1976 -- Dunialal's application under Order 9, Rule 13 of the C, P. C. was dismissed. 3rd Jan. 1977 -- Dunialal preferred an appeal with an application under Section 5 of the Limitation Act against the order of dismissal of his application under Order 9, Rule 13 of the C. P. C. and obtained C. R. No. 12 (M) of 1977 and C. R. No. 907 (M) of 1977 both of which were . subsequently discharged. 1977 -- Dunialal thereafter filed T. Suit No. 597 of 1977 in the City Civil Court for setting aside the ex parte decree in T. Suit No. 176 of 1974. 8-6-1978 -- Dunialal's T. Suit No. 597 of 1977 was dismissed for default.

(2.) In the premises aforesaid the decree for eviction against Dunialal in T. Suit No. 176 of 1974 became final and binding on him. The aforesaid court proceedings are all admitted by the parties to the suit.

(3.) When the present suit was opened, the contesting defendant Nagendra raised an objection regarding the maintainability of the suit and both the parties to the suit agreed that this preliminary issue should be decided first. The two preliminary issues were framed as follows :--