DILIP KUMAR CHOWDHURY Vs. RABINDRA NATH SEN

JUDGEMENT

(1.) THIS revisional replication is at the instance of the defendants-judgment debtors and it is directed against an order dated July 18, 1881 passed by the learned Judge, Seventh Bench, City Civil Court, Calcutta miscellaneous Case no. 74 of 1981 arising out of Ejectment Execution Case no. 119 of 1978.

(2.) THE decree holder - opposite party filed Ejectment Suit no. 579 of 1976 AG-agonist the -petitioners on - May 28, 1976. The said suit was decreed on compromise on February 4, 1977. The opposite party put the said decree into execution on April 24, 1978. On August 19, 1978 the-petitioners filed an application under section 47 of the Code of Civil Procedure and the said application Was registered Miscellaneous Case no. 1085 of 4978: In this application the petitioners contended that the compromise decree was a nullity and the said decree was passed without complying with the provisions of Sec. 13 (1) (i) of the West Bengal Premises Tenancy Act. As the decree was a nullity, it could not be executed. Written objection was filed by the opposite party - decree holder. After hearing the parties, the learned Judge by his judgment dated November 24, 1979 held that the decree could not be considered to be a nullity or to be in executable on that ground. In coming tothe conclusion, the learned Judge referred to various decisions placed before him on February 9, 1980 the petitioners filed an application under Order 47 Rule 1 read with sec. 151 of the C. P. Code. The said application was registered as Miscellaneous case no. 158 of 1980. The opposite party preferred an objection against the said application under Order 47 Rule 1. Thereafter, on January 17, 1981 the petitioners, filed an application praying for permission to withdraw their application-wider Order 47 Rule 1 with liberty to file a fresh petition to the objection of the execution of the decree. By order dated January 17, 1981 the petitioners were permitted to withdraw their application and the learned court observed-that no-leave to file any application un-"der Sec 47 was necessary and, therefore, none required to be given. On the same date, i. e. , January-17, 1981 the petitioners filed an application under Sec. 47 c. P. Code being Misc. Case no. 74 of 1981 the said Misc. Case no. 74 of 1981 has been dismissed by the learned Judge by his order dated July 18,4981. The learned-Judge held that the subsequent application under Sec 47 C. P. Code was barred by the principles of constructive res judicata. The learned Judge also-ne-"gatived the other contentions raised by the petitioners regarding. the merits of the application. The learned Judge came to the finding that the decree under execution could not be said to be a nullity or to be in executable. on the grounds taken by the petitioners.

(3.) BEING aggrieved, the petitioners in the present Rule have challenged the said order of the learned Judge. Mr. Subodh Kumar Bhattacharyya, learned Advocate for the petitioners has raised various contentions. The first contention of mr. Bhattacharyya is that the suit was instituted on the ground of default. According to Sec. 13 (1) of the Premises Tenancy Act, no order or decree for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one; or more of the grounds mentioned in. Sec. 13 (1) of the Premises Tenancy Act. Mr. Bhattacharyya contends that before recording the compromise it was incumbent upon the learned Judge to come to a finding that the plaintiff was entitled to a decree on any of the grounds mentioned in Sec. 13 (1 ). No such findings has been arrived at and, in such circumstances, the compromise decree for eviction of the defendants is a nullity. The next contention of Mr. Bhattacharyya is that as the decree was annually, there was no question of the application of the principles of res judicata and the learned court below was wrong in holding that the subsequent application under Sec. 47 C. P. Code was barred by res judicata. Mr. Bhattacharyya has argued that in the earlier application under Sec. 47 all the points challenging the execution of the decree were not mentioned and the petitioners were thus entitled to urge the same in the subsequent application. The contention of Mr. Bhattacharyya is that the decree is not in the form required to be made under the Code of Civil Procedure as it does not conform to Form No, 23' of appendix D of the Code of Civil Procedure. It has been further argued by Mr. Bhattacharyya that the defendants have complied with the terms of the decree as they have subsequently paid the amount due under the compromise decree. The grievance of Mr. Bhattacharyya is that the learned Judge has acted illegally and with material irregularity in disregarding the defendants application under Sec 17 (2) of the Premises Tenancy Act which remained undisposed of till the passing of the decree.