VISHWANATH BOGAR Vs. GYARSILAL AGRAWALLA

JUDGEMENT

(1.) Heard Mr. C. K. Sharma Baruah learned Senior counsel for the appellant and Mr. N. Choudhury, learned counsel for the respondent;

(2.) The brief facts leading to the present Second Appeal may be noted. The present appellant/plaintiff, Sri Vishwanath Bogar instituted a Title Suit No. 63/96 before the Civil Judge (Junior Division) No. 1 Sivasagar for eviction of the respon- dentt defendant, Sri Gyarsilal Agarwal from the suit premises and the eviction was sought on the ground of default and bonafide requirement as provided under the Assam Urban Areas Rent Control Act, 1972 (for short the "Act".) The said Title Suit was decreed ex- parte on 9.9.96 and thereafter the execution proceeding was initiated and on execution of the said proceeding the plaintiff got delivery of possession of the suit premises. On 18.11.96, the respondent-defendant filed application under Order 9 Rule 13 of the CPC for setting aside the ex-parte decree and thereafter vide order dated 14.6.99, the ex- parte decree was set aside. The petitioner had filed another application under Section 144 CPC for restitution of the possession of the suit premises and the said prayer was also allowed. The present appellant, thereafter, preferred Misc. appeal No. 16/99 against the order dated 14.6.99 and the said appeal was disposed of by the learned appellate court affirming the order setting aside the ex-parte decree by issuing a writ of possession of the suit premises. It may be mentioned here that the matter was brought to this Court being C.R.P. No. 232/99 and the said Misc. appeal was remanded back for fresh disposal and accordingly an order dated 15.3.03 was passed by the learned appellate court. On a petition under Section 144 read with Section 151. CPC, Misc.(J) Case No. 120/96 was registered, wherein the present appellant filed written objection and thereafter the said Misc (J) Case No. 120/96 was finally disposed of vide order dated 20.9.04. The present appellant filed Title Appeal No. 21/2004 and the same was dismissed on 31.3.05. Hence, the present Second Appeal.

(3.) This Court vide order dated 29.7.05 admitted the appeal to be heard on the following substantial question of law: "Whether the proceeding under Order 9 Rule 13 of the Code of Civil Procedure is 'the other proceeding' within the meaning of Section 144 of the Code of Civil Procedure?