JALI CHATTERJEE Vs. RAMALA PYNE

JUDGEMENT

(1.) THE revisional application being C. O. No. 1438 of 2006 is directed against an order dated 6th March, 2006 passed by the learned 11th Judge, City Civil court at Calcutta in Civil Revision Case No. 45 of 2003 affirming the order dated, 19th July, 2003 passed by the learned Judge, 6th Bench, Small Causes court of Calcutta in Misc. Case No. 41 of 2002 arising out of the Ejectment case No. 37 of 2002.

(2.) IN short, the petitioner's objection under section 47 of the Civil Procedure code challenging the executability of the decree was rejected by the learned executing Court and the said order of rejection was affirmed by the learned revisional Court. This application under Article 227 of the Constitution of India is directed against the said order passed by the Revisional Court, as aforesaid.

(3.) THE facts of the case leading to the filing of this revisional application may be summarized hereunder as follows : the opposite party No. 1/decree-holder filed a suit for eviction being Ejectment suit No. 1140 of 1978 against his tenants, viz. , Ardhendu Sekhar Roy (since deceased) and Angur Bala Devi (since deceased) in the Court of the learned judge, 9th Bench, City Civil Court at Calcutta. The said suit was decreed on contest by the learned Trial Judge against both the aforesaid defendants during their lifetime. Being aggrieved by the said judgment and decree, both the aforesaid defendants, during their lifetime, preferred an appeal being FA No. 69 of 1986 before this Hon'ble Court. During the pendency of the said appeal, one of such appellants, viz. , Angur Bala Devi died intestate on 4th January, 1993. The death of the said appellant was not reported to the learned Appeal Court and the appeal in fact proceeded with and was ultimately dismissed on contest by the learned Appeal Court in ignorance of the death of one of the said appellants. When such a decree was sought to be executed by the decree-holder, the petitioner being the heirs of Angur Bala Devi filed an objection under section 47 of the Code of Civil Procedure challenging the executability of the said decree. It was contended by the petitioner therein that since the appeal proceeded with, after the death of Angur Bala, one of the appellants, without substituting the heirs of Angur Bala therein and further since the said appeal was ultimately decided against the dead person, the decision delivered in the said appeal became a nullity. It was further contended therein that the decree passed by the learned Trial judge having been merged with the judgment and decree of the learned Appeal court, the decree passed by the learned Trial Judge also became ineffective due to its merger with the decree of the Appeal Court which is a nullity. The said objection of the petitioner was neither accepted by the learned executing Court nor accepted by the learned Revisional Court. The propriety of such an order is under challenge in this application under article 227 of the Constitution of India.