MANINDRA NATH DEY Vs. PANNA DEVI AGARWAL

JUDGEMENT

(1.) THE present application under section 115 of the Code of Civil Pocedure is directed against order dated 6.3.1999 passed by the learned Munsif Sealdah whereby the learned Civil Judge, Junior Division, Sealdah granted stay of Execution Case No. 8 of 1999 till the disposal of Misc. Case No. 25 of 1999. THE plaintiff/petitioner filed a suit, being Title suit No. 295 of 1996 for eviction of the opposite parties respondents. THE learned Munsif proceeded to hear the suit exparte in view of the fact that the defendant did not appear in spite of the service of summons and upon consideration of the materials placed by the plaintiff/petitioner, the learned Judge was pleased to decree the suit exparte. THE said decree was put into execution and during the pendency of the execution, the defendant, opposite parties came forward with an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree and for restoration of the suit on the allegation that the plaintiff/petitioner fraudulently suppressed the service of notice upon them. THE said application under Order 9 Rule 13 of the Code of Civil Procedure has been registered as a Misc. Case and the said Misc. case is awaiting disposal. By the impugned order, on the prayer of the defendant/opposite parties, the learned court below was pleased to grant the stay of the execution case exparte till the disposal of the Misc. case without giving any opportunity of being heard to the plaintiff/petitioner. THE impugned order purports to be an order whereby the learned Munsif has virtually disposed of the application for stay without, however, giving any opportunity of being heard to the plaintiff/petitioner. It goes without saying that by doing so, the learned Judge has violated the principles of natural justice and acted illegally. THE said order is, therefore, not sustainable in law, but in view of the fact that Misc. case has been filed for setting aside the exparte decree and such a Misc. case is awaiting adjudication of the court below, there is no point in proceeding with the execution of the decree even before the Misc. case was adjudicated. In the interest of justice, the impugned order is hereby set aside and the learned Munsif Sealdah is directed to hear out the Misc. Case as expeditiously as possible preferably within a period of two months from the date of communication of this order. THE learned Munsif, Sealdah is also directed not to proceed with the execution case till the disposal of the Misc. case. In view of the above direction, there is no point in keeping the stay petition pending and for directing a fresh hearing of the stay petition. THE stay petition can accordingly be deemed to have been disposed of by the stay which this court has granted pending adjudication of the Misc. Case.

(2.) THE revisional application is thus disposed of subject to the directions given above. In view of the order passed by this court, no direction is given for service of notice upon the opposite parties inasmuch as they are not going to be prejudiced any way. Learned Advocate for the petitioner is given liberty to communicate the gist of this order. Application disposed to