DAMODAR DAS Vs. GADADHAR MALLIK

JUDGEMENT

(1.) This Civil Revision is directed against an order of the Executing Court allowing the judgment-debtor's objection under Section 47 of the Code of Civil Procedure.

(2.) The facts giving rise to this Civil Revision may be briefly stated as follows : The petitioner as plaintiff brought Money Suit No 231 of 1970 for recovery of money on the foot of a hand-note executed by O.P. No. 2 Pitambar Mallick as karta and manager of a joint family consisting of himself and his two brothers Gadadhar and Dusasan (O.P. Nos. 1 and 3 respectively). Pitambar. Gadadhar and Dusasan were impleaded in the suit as -defendants 1, 2 and 3 respectively. On 28-10-70, defendant No. 1 entered appearance in the suit and prayed for time to file his written statement, After taking several adjournments, he did not file any written statement and was set ex parte. Defendants 2 and 3 did not enter appearance despite service of notice. The suit was decreed ex parte on 23-7-71. Defendant No. 1 filed an application under Order 9, Rule 13, C.P.C. which was dismissed on 22-7-72. An appeal carried against the order of dismissal was dismissed on 25-7 73. A Civil Revision was carried against the appellate order and it was dismissed on 27-11-1973. The petitioner-decree-holder had levied execution of the decree in Execution Case No. 65/72. Notices under O. 21, Rule 22, C.P.C. were served, attachment made, sale proclamation followed and sale held on 15-9-73 was confirmed on 2910-73. On 23-12-73, a writ of delivery of possession was issued under Order 21, Rule 95, C.P.C. and on 31-12-73 possession was delivered.

(3.) On 10th January, 1974, defendant No. 2 (O.P. No. 1 here) filed an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree on the 'ground of fraudulent suppression of suit summons. The application was allowed an 4-3-76 and the decree was set aside. The petitioner carried a Civil Revision, which was allowed on 27-1-77 and the order of the learned Munsif allowing, the application under Order 9, Rule 13, C.P.C. was set aside. Then defendant No. 3 filed Title Suit No. 72/77 to set aside the decree and the same was dismissed. Thereafter on 11-5-77, defendant No. 2 (O.P. No. 1 here) came up with an application under Section 47, C.P.C. challenging the sale as null and void arid praying for confirmation of his possession or in the alternative recovery of possession. His allegations were that there was fraudulent suppression of summons, notices and other processes in, the original suit and the execution case and that he was totally ignorant about the suit and the execution proceeding till 12-4-77 when the petitioner threatened to dispossess him from his lands. It was alleged that the properties sold in execution of the decree were his self-acquired properties and defendant No. 1 who executed the suit hand-note had no interest therein. The petitioner filed counter-contending that, the objection under Section 47, C.P.C. was barred by res judicata. The executing Court having allowed the application under Section 47, C.P.C. the petitioner has come up in revision.