GHANA BORGOHAIN Vs. LEGAL HEIRS OF DURGADAS BANERJEE

JUDGEMENT

(1.) Heard Mr. A. Iqbal, learned counsel appearing for the petitioners. Also heard Mr. A. Sancheti, learned counsel appearing for the respondents.

(2.) This application under Article 227 of the Constitution of India, read with Section 151 CPC is filed against the order dated 07.08.2017, passed by the learned Civil Judge No. 1, Kamrup (Metro), Guwahati, in Misc (J) Case No. 247/14 arising out of Misc. (J) Case No. 23/12, in Title Execution Case No. 3/09, pending in the court of learned Civil Judge No. 1, Kamrup (Metro), Guwahati.

(3.) The plaintiffs/respondents instituted a title suit, being T.S. 79/86, in the court of the learned Civil Judge No. 1, Kamrup (Metro), Guwahati. By a judgment and order dated 09.07.2003, passed by the learned Civil Judge No. 1, Kamrup (Metro), Guwahati, the suit was decreed. The predecessor-in-interest of the present petitioners, who are substituted during the pendency of this Civil Revision Petition, had filed an application on 06.06.2012 under Order XXI Rule 97, 99 read with Rule 101 and 105 CPC, and the said application was registered as Misc. (J) Case No. 23/12. The said application, i.e. Misc. (J) Case No. 23/12 was dismissed for default by an order dated 10.06.2014. It is to be noted, at this point, that the plaintiffs had started an execution case, being Title Execution Case No. 3/09, which is pending in the court of the learned Civil Judge No. 1, Kamrup (Metro), Guwahati. After dismissal of Misc. (J) Case No. 23/12 because of default, a petition, being Petition No. 1540/2015, under Order IX Rule 4 read with Section 151 CPC was filed by the conducting counsel praying for restoration of Misc. (J) Case No. 23/12 and the said application was registered as Misc. (J) Case No. 247/14. The application was rejected by an order dated 14.11.2014 and, challenging the said order dated 14.11.2014, a civil revision petition, being CRP No. 62/15 was filed before this court and the same was allowed by setting the order dated 14.11.2014 with certain directions and observations. This court held that Misc. (J) Case No. 247/14 had been rejected without considering the application on merit only on the ground of unsatisfactory conduct of the petitioner. This court observed as under: