PARITOSH KUMAR GANGULY Vs. SITALA BALA GHOSH

JUDGEMENT

(1.) This decision relates to an application filed by the decree holder opposite parties for variation and/or vacating the interim order dated 3rd December, 1984 passed by this Court in this Civil Order staying all further proceedings of the Misc. Case No. 25 of 1981 pending before the learned Munsif 1st Additional Court, Alipore arising out of an application of the petitioner under S.47 of the Civil P.C. raising objection to the execution of the decree for ejectment passed in Title Suit No. 219 of 1966.

(2.) It appears that the decree holder opposite parties filed Title Suit No. 219 of 1966 for ejectment and damages against the original tenant defendant Sushil Chandra Ganguly who died during the pendency of the suit and thereafter the heirs and legal representative of the deceased tenant defendant were brought on record including the two minors Paritosh Ganguly and Km. Sandhya Ganguly. The learned Munsif appointed an Advocate as guardian of the said minors. The Advocate guardian after issuing registered notice to the natural guardian mother of the minors did not receive any instruction to contest the suit filed, whereupon the learned Munsif appointed Smt. Laxmi Devi Ganguly, mother of the minors as their guardian in the proceedings of the suit. The mother guardian of the said minors contested the suit by filing written statement. The suit was ultimately decreed by the learned Munsif on 31-8-1979. Thereafter the defendants including the minors represented by their mother guardian filed Title Appeal No. 1187 of 1979 which was dismissed on contest. Subsequently, the tenant defendant filed Second Appeal from the decree of the first appellate Court in this Court and at the hearing under O.41 R.11 of the Code on 8-4-1982 the learned Judges of the Division Bench summarily dismissed the appeal and directed that the application for stay and affidavit for attainment of majority be kept with the record. The defendants/appellants were granted two months" time to vacate the suit premises.

(3.) After the aforesaid order of the Division Bench, as the defendant Paritosh Ganguly, the petitioner in the present Civil Order did not vacate the suit premises, the decree holders filed Title Execution Case No. 2 of 1981 for executing the decree and in the said execution case the defendant Paritosh Ganguly filed objection under S.47 of the Civil P.C. contending that as he attained majority in 1975 and thereafter could not be properly represented by his guardian mother in the proceedings of the suit, the decree passed against him by the trial Court on 31-8-1979 which was affirmed in appeal, is a nullity and not binding on him. It was contended that after attainment of majority by him in 1975 no summons or notice of the suit was served on him and he was unaware of the proceedings of the suit and, therefore, the decree passed therein in so far as he is concerned is a nullity and not binding and cannot be executed against him. The learned Munsif has dismissed the application under S.47 of the Code giving rise to Misc. Case No. 14 of 1982 holding that the petitioner was properly represented in the suit as he was represented by the guardian appointed by the Court who represented his interests throughout the proceedings. Against the said order of the learned Munsif dismissing the application under S.47 of the Code, the petitioner Paritosh Ganguly has filed this revisional application.