PRABHA AJAY AGARWAL Vs. RAM KISHAN MITTAL

JUDGEMENT

(1.) A very short legal point is involved in the instant revision-as to whether order passed ex-parte against a dead person, which was sought to be set aside by the legal heirs of the dead person under Order 9, Rule 13 CPC can be rejected.

(2.) One Banshidhari Agarwal inducted present OP No. 2 as a tenant in the premises in question. OP No. 2 occupied the premises along with her relatives Banshidhari Agarwal instituted a suit for ejectment and consequential prayers before the learned Civil Judge, (junior Division) Darjeeling being OC Suit No. 15 of 1997. The suit was contested by the OP No. 2. During pendency of the said suit Banshidhari Agarwal expired his legal heirs gifted the suit premises in favour of one Ajay Kr. Agarwal. The suit was decreed. Ajay Kr. Agarwal initiated an execution proceeding. Present OP No. 1 (one relative of OP 2) filed a suit being OC suit No. 3 of 2013 before the learned civil Judge (Senior Division) at Kalimpong State. OC Suit No. 3 of 2013 was dismissed as not maintainable.

(3.) OP No. 1 filed an application under Order 21 Rule 99/100/101 of the Code of Civil Procedure 1908, before the Learned Civil Judge (Senior Division) Kalimpong which was registered as Misc Case No. 1 of 2017. Misc Case No. 1 of 2017 was dismissed on contest OP No. 1 preferred an appeal before Learned District and Sessions Judge, Kalimpong, who was registered as misc appeal 1 of 2019.