BIMALA BALA DEVI Vs. BATAKRISHNA DAS GHOSE

JUDGEMENT

(1.) This appeal by Bimala Bala Debt who was the landlady in respect of certain premises arises out of an application under Sec. 47 C.P.C. filed by Bata Krishna Das Ghose, the present respondent. The relevant facts are briefly as follows: On 19-9-51 the present appellant obtained an ex parte decree against the respondent in respect of the disputed premises, and she started execution proceedings. The present respondent, however, filed an application under Order 9, rule 13 C.P.C. for setting aside the ex parte decree. That application was dismissed by the trial court. Against that decision an appeal was preferred by the present respondent and arguments were heard on 5-7-52, On 10-7-52 judgment was delivered by the appellate court dismissing the appeal. On 11-7-52 the present respondent filed an application under section 47 O.P.O. praying for dismissal of the execution case alleging adjustment of the decree on 6-7-52. This application was dismissed by the trial court. The lower appellate court, however, reversed the decision of the trial court and accordingly the landlady decree-holder who was the opposite party in the Miscellaneous Case under sec. 47 C.P.C. has preferred this appeal.

(2.) Certain points of law have been canvassed before me on behalf of the appellant. It has also been argued that the judgment of the lower appellate court is not a proper judgment of reversal and it has been suggested that if the points of law urged on behalf of the appellant are decided against her, the case should be sent back on re-mand for re-hearing of the appeal according to law.

(3.) Before dealing with the points of law canvassed before me I propose to deal with the argument on behalf of the appellant as to whether the judgment of the lower appellate court can be said to be a proper judgment of reversal. So far as this point is concerned, on going through the judgments of the courts below as also taking into consideration the salient points in the evidence ad-duced by the parties in this case I have no manner of doubt in my mind that the judgment of the lower appellate court cannot be said to be a proper judgment of reversal. The learned subordinate Judge who heard the appeal has chosen to reverse the finding of fact arrived at by the trial court regarding the alleged adjustment without referring to the evidence of the husband and the father of the present appellant at all. These gentlemen had supported the case of the appellant to the effect that there was no adjustment as alleged by the present respondent. Quite apart from this the lower appellate court seems to have thought that there was discrepancy among the witnesses examined on behalf of the present respondent only in respect of a minor detail. Even a cursory glance, however, at the evidence of those witnesses shows that there are discrepancies on many points and not only on one point. Then, again, this was pre-eminently a case which had to be considered in the light of probabilities. This aspect of the case, however, was also not considered by the lower appellate court. In these circumstances I cannot but hold that the decision of the lower appellate court on the material question of fact, namely, whether there was an adjustment or not, cannot be said to have been properly arrived at by the final court of facts and if the decision of this Court be against the contention of the appellant on points of law, there would be no option but to remand the case to the lower appellate court for re-hearing of the appeal.