NARAYAN CHANDRA BERA Vs. BIKASH CHANDRA MANDAL

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India has been filed by the Defendant No.3/ judgment-debtor/petitioner, challenging Order No.78 dated 13th July, 2011, passed by the learned Civil Judge (Junior Division) 2nd Court, Medinipur, district Paschim Medinipur in J. Misc. Case No.10 of 2010 arising out of J. Misc. Case No.12 of 2007 filed in connection with Title Execution Case No.1 of 2005.

(2.) In the revisional application it is the contention of the petitioner that Opposite Party No.1/decree-holder as plaintiff filed a suit for declaration with consequential relief against the petitioner and proforma Opposite Party Nos.2 and 3 therein. The suit was registered as Title Suit No.173 of 1988. By Judgment and decree dated 24th June, 2004, learned Trial Judge decreed the suit ex parte against the defendants. Opposite Party No.1 put the decree into execution which gave rise to Title Execution Case No.1 of 2005. In the said execution case the petitioner filed an application under Section 47 of the Code of Civil Procedure challenging the executibility of the decree so passed by the learned Trial Judge. The said application was registered as J. Misc. Case No.12 of 2007. Subsequently the said Misc. Case No.12 of 2007 was dismissed for default on 3rd May, 2008. The petitioner filed an application for restoration of the said Misc. Case No.12 of 2007 and the application for restoration was registered as J. Misc. Case No.10 of 2010. The decree-holder, Opposite Party No.1, contested the said application for restoration by filing written objection and denying the material allegations contained therein.

(3.) After a contested hearing, the learned Civil Judge (Junior Division) 2nd Court, Paschim Medinipur, by the Order impugned, dismissed the application for restoration being J. Misc. Case No.10 of 2010 arising out of J. Misc. Case No.12 of 2007 in connection with Title Execution Case No.1 of 2005. The Court below has come to a finding that the judgment-debtor has adopted a tactics to delay the entire proceeding which should not be encouraged and, accordingly, the application for restoration cannot succeed. The Court below has also made a finding that the delay of almost two years in filing the revisional application remained unexplained by the petitioner. The learned Court below has expressed its anguish that although the suit was decreed in the year 2004, still the same has not been executed because of several pending Misc. Cases. I have gone through the revisional application, the materials disclosed in the revisional application and the Order impugned. It appears to me that when a decree was passed ex parte and after passing of the decree the judgment-debtor has already filed an application under Section 47 of the Code of Civil Procedure, the same is required to be adjudicated on merit. Section 47 of the Code prescribes that