MANJU RANI GHOSH Vs. SANTI RANI HAZRA

JUDGEMENT

(1.) Heard the submission of the learned Senior Advocate for the petitioners, Mr. Asoke Kumar Sengupta appearing with learned Advocate Mr. Sunirmal Datta. Considered the materials on record.

(2.) By this revisional application under Section 115 of the Code of Civil Procedure, the judgment-debtors petitioners have challenged the order No. 9 dated 22nd December, 1995, passed by the learned District Judge, Barasat, North 24-Parganas. The learned Munsif, 4th Court, Sealdah passed a decree in Title Suit No. 568 of 1975 against the judgment-debtor petitioners. The decree was levied to execution by the decree holder and the same was registered as Title Execution Case No. 87 of 1986 by the learned Munsif, 4th Court, Sealdah. The execution of the decree was resisted by some of the judgment-debtors and the decree-holder field a petition under Order 21, Rule 97 of the Code of Civil Procedure, seeking police help and the same was registered as Misc. Case No. 117 of 1994. In that Misc. Case some of the judgment-debtors opposed the prayer for police help and the objection was overruled by the Executing Court. Some of the judgment-debtors, petitioners herein, preferred a Misc. Appeal against the said order, being Misc. Appeal No. 200 of 1994, before the court of the learned District Judge, Barasat, and the learned District Judge transferred the said misc. appeal after admission to the court of the learned Assistant District Judge, 1st Court. Barasat, for disposal.

(3.) The short background of the case is that the decree-holder, opposite party No. l herein, field a suit for declaration of title, eviction of the defendants, injunction etc. The suit was decreed, the execution of which was resisted by some of the judgment-debtors who ultimately made an appeal against the order of the learned Munsif before the court of the learned District Judge, Barasat. The appeal was admitted by the initial order with a direction of the service of summons upon the respondents therein. The summons were served upon the respondents Nos. l to 6, but as no summons were served upon the respondent No.7 the learned District Judge by his order No. 7 dated 31.8.95 recorded the same and fixed 23.11.95 for service return, acknowledgement due card and order. He recorded that the lower court records have already been received by that Court. Thereafter, the respondent No. l, meaning the decree-holder, made an application in that misc. appeal for expunging the name of the respondent No.7 from the memorandum of appeal and the prayer was allowed. In that order, that is, order No.8 dated 23.11.95, the learned district Judge also fixed for hearing the petition for order on 22nd December, 1995. It appears from Order No.9 dated 22.12.95 that the appellants filed written objection against the petition field by the decree-holder on 22nd November, 1995. The appellate Court after recording that the lower court records have been received transferred the Misc. Appeal to the court of the learned Assistant District Judge, lst Court, Barasat, for disposal, as stated hereinbefore.