SUSHILA BALA ROY Vs. MADHURI CHOWDHURY

JUDGEMENT

(1.) THIS Rule is directed against Order No. 114 dated Way 29, 1982 passed in Title Suit No. 165 of 1969 and order No. 10 dated May 29,1982 passed in Title Execution case No. 85 of 1981 by the learned Munsif, 5th Court, Alipore. By the said orders, the application made by the petitioner in Title Suit No. 165 of 1969 for fixing the date of hearing of the said Title Suit and the Application made by the petitioner in Title Execution Case No- 85 of 1981 for striking off the execution proceeding were disposed of by the learned munsif and both the said petitions made by the petitioner were rejected.

(2.) THE relevant facts relating to the said petitions may be summarised as follows:-On September 12, 1973, the opposite party filed Title suit No. 165 of. 1969 against the petitioner and one Sm. Kumudini Debya for declaration of title, permanent injunction and recovery of possession. The said suit was decreed ex parte on September 12 1973. The petitioner and Sm. Kumudini Debya made an application under Order 9 Rule 13 of the Code of Civil procedure on October 29, 1973 for setting aside the said ex parte decree and on the said application, Misc. Case No. 120 of 197 3 was started. Srm. Kumudini Debya died sometime in November, 1974 and on March 7, 1975, the petitioner made an application under Order 22 Rule 9 of the. Code of Civil Procedure for setting aside the abatement of the said Misc. Case No. 120 of 1973 and on such application for setting aside abatement misc. case No. 25 of 1975 was started. It appears that 'in june 1 976, Misc. Case No. 25 of 1975 was dismissed for default but on October 30, 1976, Misc. Case No. 120 of 1973 which arose out. of the application for setting aside ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure was allowed subject to payment of cost of Rs. 100/- to the decree holder opposite party. The petitioner put the said cost of Rs. 100/-and such cost was also withdrawn by the opposite party on november 30, 1976. Sometime in February, 1979, the opposite party made an application for confirming the ex parte decree and for dropping subsequent proceedings in connection with such ex parte decree. By order No. 134 dated January 7, 1981, the learned Munsif allowed the prayer of the opposite party for confirming the ex parte decree and for drooping the subsequent proceeding The petitioner thereafter made an application on February 20, 1981 for rectification of the said order No. 134, but such application was rejected by the learned Munsif on August 11, 1981 by order No. 138. Thereafter, the opposite party put the said ex parte decree for execution over which title Execution Case No. 85 of 1981 has been started. On February 17, 1982, the petitioner filed two applications, one in Title Suit No. 165 of 1969 and the other in the said Title execution Case No. 85 of 1981 inter alia praying for fixing a date of hearing of the suit and for striking off the Title execution Case as aforesaid, by the impugned orders, the said applications of the petitioners have been rejected by the learned Munsif.

(3.) NOBODY has appeared in the instant Rule on behalf of the plaintiff decree-holder opposite party. Mr. Bhattacharya, the learned Counsel for the defendant judgment debtor petitioner Sm. Sushila Bala Roy has submitted that the ex parte decree was set aside on the application under Order 9 Rule 13 of the C. P. CODE made by the petitioner and the other defendant Sm. Kumudini Dibya since deceased BY the leaned Munsif on October 30, 1976 by allowing Misc. case No. 120 of 1973 subject to payment of cost of Rs. 100/- to the plaintiff opposite party. The defendant petitioner having put in such cost, the plaintiff opposite party had withdrawn the same sometime in November, 1976. In view of such setting aside of the ex parte decree Title Suit No. 165 of 1969 has revived and the learned Munsif should have allowed the application of the defendant petitioner for fixing the date for further hearing of the said suit. The learned Counsel has also contended that in view of the setting aside of the said ex parte decree, the execution proceeding in Title Execution Case No. 85 of 1981 can no longer proceed and the said execution case-based on an ex parte ' decree since set aside must be struck off. A such,the learned Munsif acted illegally and without jurisdiction in not striking off the said Title execution case No. 85 of 1981 but directing for taking steps to proceed with the said execution case. It appears that the learned. Munsif has proceeded on the footing that as the application for setting aside abatement in view of death of Sm. Kumudini Debya was dismissed, Misc. case No. 120 of 1 973 arising out of application under Order 9 Rule 13 of the Code of Civil procedure was bound to fail and any order passed in such proceeding viz. in Misc. Case No. 120 of 1 973 was without jurisdiction and no effect should be given to such order, more so when on February 9, 1979 on the prayer of the opposite party, the court had confirmed ex parte decree and the attempt on the part of the petitioner to restore Misc. Case No. 25 of 1975 arising out of the application for setting aside abatement under Order 22 Rule 9 of the Code of Civil Procedure had failed.