KAMALA DUTTA Vs. BALLYGUNGE ESTATES P LTD

JUDGEMENT

(1.) This appeal is preferred against an order passed by the learned Subordinate Judge, Sixth Court, the Executing Court, allowing the decree-holder petitioners to take delivery of possession after dispensing with the service of notice under Order 21, Rule 22 of the Code of Civil Procedure on some of the heirs and legal representatives of the deceased judgment-debtor briefly in the following circumstances.

(2.) The respondent, Ballygunge Estates (Private) Ltd. is the owner of a Cinema House known as 'Aleya Cinema' near Gariahat Market, Ballygunge, Calcutta. One Keshab Chandra Dutta, who was the Manager of the Cinema, instituted a suit on or about 17th August, 1970 in Alipore Court for specific performance of contract with other consequential reliefs against the respondent in terms of an agreement alleged to be entered into by and between the respondent and the plaintiff in that suit which was ultimately decreed ex parte. This ex parte decree was put into execution on or about 27th January, 1971 and the plaintiff Keshab Chandra took possession of the Cinema.

(3.) Thereafter, the respondent made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and obtained an order setting aside such decree on 23rd October, 1971. Then the matter came up in revision at the instance of Keshab Chandra, the plaintiff, who obtained a Rule from this Court which was, however, discharged. On or about 6th January, 1972 the respondent made an application under Section 144 of the Code of Civil Procedure for restitution and pending the disposal of the restitution application the plaintiff Keshab also made successive applications, for preferring an appeal, for leave to appeal to the Supreme Court but both the applications for leave as also for special leave were dismissed. On or about 6th May, 1972 the respondent obtained an order for restitution of possession of the Cinema upon his application. An appeal taken again to this Court from this order was also dismissed on or about 3rd October, 1972.