ANNAPURNA KAR Vs. GOUR KISHORE DAS

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India is at the instance of a third party in a proceeding for execution and is directed against order dated April 9, 1998 passed by the learned Additional District Judge, 6th Court, Alipore in Civil Revision Case No. 188 of 1997 thereby setting aside Order No. 43 dated December 21, 1996 passed by the learned Munsif, 3rd Additional Court, Alipore in Misc. Case No. 54 of 1994 arising out of Title Execution Case no. 28 of 1994.

(2.) The opposite party No. 1 filed a suit for eviction against the opposite parties No. 2 and 3 and their father viz. Kir'tibas Kar on the allegation that the aforesaid three persons forcibly trespassed into the suit property. During the pendency of the aforesaid suit, the said Kirtibas Kar, the defendant No. 1 therein died intestate leaving three sons, (including the opposite parties No. 2 and 3), three daughters and his widow. Since two of the heirs of Kirtibas Kar were already on record, the learned trial Judge permitted the opposite party No. 1 to proceed with the aforesaid suit against the opposite parties No. 2 and 3 after recording the death of Kirtibas Kar. Ultimately, the said suit was decreed and an appeal preferred by the opposite parties No. 2 and 3 against such decree was also dismissed.

(3.) The opposite party No. 1 put the aforesaid decree into execution thereby giving rise to the aforesaid Title Execution Case No. 28 of 1994. In the said execution case, the present petitioner, the widow of the deceased Kirtibas Kar, filed an application describing the same as one under Section 47 of the Code of Civil Procedure thereby claiming that her husband, Kirtibas was a tenant in respect of the suit property at a monthly rental of Rs. 32/- a month and the decree obtained by the opposite party No. 1 against opposite parties No. 2 and 3 was not binding upon herinasmuch as on the death of Kirtibas only two out of seven heirs who were already on record were proceeded with.