DIPTI KAR Vs. BIMALENDU PAUL

JUDGEMENT

(1.) -The present application under Article 227 of the Constitution of India is directed against the judgment dated 30th June, 1995 of dismissing the application under section 115A CPC filed at the instance of the present petitioner against the order No. 10 dated 13.6.94 passed by the Executing Court in Title Execution Case No. 6/94 rejecting his application for stay.

(2.) The facts relevant for our present purpose may be stated as follows :- The opposite parties No. 1 and 2 filed a suit being Title Suit No. 651/86 against one Manoranjan Kar for permanent injunction against the petitioner in the Third Court of Munsif at Sealdah. The said Suit was decreed ex parte on 20th February, 1989. The defendant filed a misc. case under Order 9 Rule 13 CPC being Misc. Case No. 21/89 on 5th November, 1989. During the pendency of that Misc. case the defendant Manoranjan died on 17.9.92 leaving behind the present petitioner and the proforma opposite parties as his heirs and legal representatives. By reason of non-substitution of the said heirs and legal representatives within the prescribed time limit the said Misc. case No. 21/89 filed under Order 9 Rule 13 was abated on 16th December, 1992. The plaintiff opposite parties No. 1 and 2 put the ex parte decree into execution being Title Execution case No. 6/94. The present petitioner filed an application under Order 22 Rule 9 CPC for setting aside the abatement and restoring the Misc. Case No. 21/89 to its file and number. On 7th June, 1994, the said application was registered as Misc. Case No. 53/94. The petitioner also filed an application for stay of the execution case till the disposal of the said Misc. Case No. 53/94. By order No. 9 dated 8th June, 1994 the Executing Court was pleased to grant an interim stay of the execution case till the disposal of the said application for stay fixing 13th June, 1994 for hearing of that application. On 13th June, 1994 the executing court upon hearing both the parties by its order No. 10 dated 13th June, 1994 was pleased to reject the said application for stay on the ground that no cost was paid by the petitioner-Judgment debtor in terms of its earlier order No. 9 dated 8.6.94 and that the Misc. Case No. 21/89 under Order 9 Rule 13 was no longer pending.

(3.) Being aggrieved the judgment debtor petitioner filed the revisional application under section 115A CPC which the learned lower appellate court was pleased to dismiss by the impugned order dated 30th June, 1995.