JUTHIKA BASU Vs. PARUL BALA KUNDU

JUDGEMENT

(1.) BY this revisional application the petitioner Smt. Juthika Basu, one of the judgment debtors in Title Execution case No. 128 of 1973, has challenged the order dated 24. 11. 81 passed by the learned Judge, 10th Bench, City Civil Court, calcutta, in Misc. Case No. 851 of 1978 under Section 47 of the Code of Civil procedure read with section 151 of the said Code, arising out of the aforesaid title execution case.

(2.) THE plaintiff decree-holder-opposite party no. 1 (Sm. Parul Bala Kundu)who acquired the suit premises by purchase sometime in March 1965 filed the ejectment Suit No. 824 of 1968 in May 1966 for eviction of the defendant who was the predecessor -in interest of the petitioner judgment-debtor and pro forma judgment-debtor opposite parties on the ground of reasonable requirement. The suit was decreed on contest on 16. 12. 68. The defendant preferred the appeal being F. A. No. 842 of 1969 before the High Court. The said F. A. No. 842 of 1969 was dismissed on 7. 12. 71. The decree in the ejectment suit was put into execution in Title Execution Case No'. 128 of 1973 for recovery of possession in the suit premises. The bailiff who was sent to execute the writ of delivery of possession was resisted by the original judgment-debtor. Misc. Case No. 1128 of 1973 under order 21, Rule 97 of the Civil procedure Code for execution of the writ of delivery of possession with the police help was started at the instance of the decree-holder. The judgment-debtor in the meantime filed an application under section 17e of the West bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'basic act') and also filed the Misc. Case No. 90 of 1974 under section 47 of the Civil procedure Code. The application under section 17e of the Basic Act was dismissed on 22. 2. 73 and the Misc. Case No. 90 of 1974 was dismissed on 1. 6. 74. The defendant judgment-debtor filed a revision being C. R. No. 2881 of 1974 against the order dated 1. 6. 77 and the High court by its order dated 12. 12. 77 dismissed the revisional case. The original defendant judgment-debtor died during the pendency of the revision case and the present petitioner judgment-debtor and other pro forma- judgment debtors- opposite parties were substituted. The Misc. Case No. 1128 of 1973 under Order 21, rule 97 of the Code of Civil Procedure was then allowed on 6. 3. 78. The petitioner judgment-debtor came to know that the opposite party decree-holder was going to execute the writ of delivery of possession with the police help and accordingly filed the instant Misc. Case no. 851 of 1978 under section 47 of the civil Procedure Code read with section 151 thereof, alleging inter alia that the decree in the ejectment suit having been passed in contravention of section 13 (3a)of the Basic Act was a nullity as the court passing the decree had no jurisdiction to entertain the suit and that accordingly the decree was not executable. The plaintiff decree-holder opposite party no. 1 contested the misc. case by filing objection.

(3.) THE learned Judge, City Civil! Court, calcutta, by the impugned order dismissed the said misc. case under section 47 read with section 151 C. P. C. on the ground that the decree passed by the court in contravention of section 13 (3a)of the Basic Act was voidable and not void and that the judgment debtor's attempt to set aside the said decree by filling the application under section 17e of the Basic Act was unsuccessful because of the dismissal of that application and that the instant Misc. Case No. 351 of 1978 was hit by constructive res judicata because of the dismissal of the earlier Misc. Case No. 90 of 1974 Under section 47 of the Civil Procedure Code.