SHYAMAL GUPTA Vs. SANTOSH KUMAR GUPTA

JUDGEMENT

(1.) THIS revisional petition arises out of an order dated December, 1997 passed by the learned First Munsif at Sealdah in Misc. Case No. 68 of 1996 thereby rejecting an application of the defendant-petitioner under section 47 of the CPC arising out of a judgment and decree passed on 16.9.1988 in Title Suit No. 350/84. Learned Counsel for the petitioner (sic) that whereas an executing Court cannot go behind the decree but if it could be shown that the decree was a nullity, certainly, the executing Court can go into this question and hold that the decree was a nullity and could not be executed. In this context, reliance was sought to be placed on in the case of Gopal Ch. Paul v. Smt. Amla Mondal, AIR 1990 Cal 105 : 1990(1) RCR 613 (Calcutta). So far this legal proposition was concerned, there was, in fact, no controversy raised by the Opposite side and I would most certainly agree with this view that if a decree was a nullity either for want of jurisdiction or some inherent legal gross illegality, it could not be executed. But here was a case in which probably there was nothing on the record to declare the decree as a nullity.

(2.) SO as to challenge the decree-in-question as a nullity it was very emphatically urged that there was no compliance of the mandate under section 13(6) of the W.B.P.T. Act, 1956, whereby a notice for eviction was a must. In this regard I may, however, refer to the decision in Sk. Firoj and another v. Sakhya Singha Mullick and others, AIR 1991 Cal 161 : 1991(2) RCR 64 (Calcutta). wherein a ratio has been decided that in the case of ex parte decree of ejectment the executability of the same cannot be challenged invoking provision under section 47 of the CPC on the ground of absence of valid notice under section 13(6) of the aforesaid Act. Beside this, it has to be noticed in the relevant order dated 16.9.1988 whereby, the ex parte decree was passed that the learned trial Court did arrive at a conclusive finding that the notice as such, was properly served upon the defendant. In order to arrive at such a finding the trial Court placed reliance on the oral evidence of the plaintiff as also the notice, postal receipts and the service report of the postal department (Ext. 1, 2 and 3). The trial Court, further, observed that considering the notice it found that the notice was legal, valid and sufficient.

(3.) NOW , coming to the next point of challenge, I may first straight way refer to the decisions relied upon on behalf of the petitioner, which were Nandini Bala Dasi v. Bibhuti Bhusan Mukherjee, 1987(1) Cal LJ 57 and Sambhu Charan Hazra v. Bandana Laha, 1991(1) Cal HN 279 : 1993(2) RCR 404 (Calcutta). The ratio of these cases would certainly indicate that a decree of eviction can be have had only within the purview of and on one or the other statutory ground as contained in different clauses of section 13(1) of WBPT Act. In the instant case, the decree of eviction was sought for on the ground of default in payment of rent as contained in section 13(1)(i). While passing the ex parte decree, the learned trial Court had most certainly held that the defendant was liable to be evicted on the ground of default as comprised in the provision of section 13(1)(i) of the WBPT Act. The relevant extract of the ex parte judgment dated 16.9.1988 may be placed here for better appreciation.