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2004 DIGILAW 154 (CAL)

MD. SAFI v. ABDUL SAMAD

2004-02-27

ARUN KUMAR

body2004
A. K. BHATTACHARYA, J. ( 1 ) THE hearing stems from an application filed by the petitioner praying for revision of the order being No. 109 dated 19. 06. 2000 passed by the learned District Judge, Murshidabad in Misc. Case 42/1990. ( 2 ) THE circumstances leading to the present revision are that the present petitioner filed T. S. 123 of 1967 in the Court of learned Munsif, 1st Court, Jangipur for eviction of the opposite parties/defendants from the disputed property and recovery of khas possession. He preferred appeal being T. A. 59/74 against the judgment and decree passed by the learned Munsif and the same was allowed ex parte on 7. 10. 1977. The application under Order 41, Rule 21 read with section 151 of Code of Criminal Procedure filed by the opposite parties/defendants, being registered as Misc. case 60/77 for setting aside the ex parte decree was dismissed for default on 25. 5. 79 followed by another application under the same provisions along with an application under section 5 of the Limitation Act on 17. 9. 90 being registered as Misc. Case 42/90 for setting aside the ex parte decree dated 7. 10. 77 on condonation of delay contending that they had no knowledge of the judgment of the Appellate Court as no summons were served and that they came to learn about the ex parte judgment and decree only on 4. 9. 90 on receipt of notice of the Execution Proceeding 4/89. The above Misc. Case 42/90 was allowed by the impugned order dated 19. 06. 2000 directing the opposite parties to pay Rs. 1000/- to the petitioner within a month. ( 3 ) BEING aggrieved by and dissatisfied with the said order, the petitioner has preferred the present revision. ( 4 ) ALL that now requires to be considered is whether the learned Court below was justified in passing the above order. ( 5 ) AS none appeared on behalf of the opposite parties on calls, the revisional application was heard ex parte. ( 6 ) MR. ( 4 ) ALL that now requires to be considered is whether the learned Court below was justified in passing the above order. ( 5 ) AS none appeared on behalf of the opposite parties on calls, the revisional application was heard ex parte. ( 6 ) MR. Ashok Kumar Maity, learned counsel for the petitioner, on referring to the impugned order contended that in reversing the ex parte decree passed in T. A. 59/74 after condoning delay of about 13 years, the learned Judge considered matters which were not at all germane to the issue, totally overlooking and/or ignoring the factual position that the opposite parties/defendants filed a similar application under Order 41, Rule 21 read with section 151 CP Code being registered as Misc. Case 60/77 which was dismissed for default on 25. 5. 79 which alone totally falsifies the alleged knowledge of the opposite parties of the ex parte decree only on 4. 9. 1990 on receipt of the notice of the Execution Proceeding 4/89, and as such the learned Court below having acted illegally and with material irregularity the impugned order should be set aside. ( 7 ) WITH all my concurrence with the above contention of Mr. Maity I may shortly discuss the matter. ( 8 ) IT is undisputed that the opposite parties/defendants filed an application under Order 41 Rule 21 read with section 151 CP Code, being registered as Misc. Case 60/77 for setting aside the ex parte decree passed on 7. 10. 1977 in T. A. 59/74 and that the said Misc. Case 60/77 was dismissed for default on 25. 5. 79. So, the contention of the opposite parties/defendants in their subsequent application under Order 41 Rule 21 read with section 151 Code of Criminal Procedure being registered as Miscellaneous Case 41/90, along with an application under section 5 of the Limitation Act filed after about long 13 years from the date of ex parte decree, praying for setting aside the ex parte decree passed on 7. 10. 77 in T. A. 59/74 on the ground of alleged knowledge of the said ex parte decree only on 4. 9. 90 on receipt of notice of the Execution Proceeding 4/89 obviously does not stand at all. As such, there was no scope for condonation of delay nor any scope to go in for examining other matters. 10. 77 in T. A. 59/74 on the ground of alleged knowledge of the said ex parte decree only on 4. 9. 90 on receipt of notice of the Execution Proceeding 4/89 obviously does not stand at all. As such, there was no scope for condonation of delay nor any scope to go in for examining other matters. ( 9 ) ACCORDINGLY, the jurisdictional error being involved in the impugned order which is apparent on the face of the record and which is unreasonable and not based on sound judicial principle, causing grave in justice, the order deserves to be set aside. In this connection, the decision reported in Bhaktipada v. S. D. O. ( AIR 1971 Cal 204 ) may be referred to. ( 10 ) IN the premises, the revisional application be allowed ex parte. The impugned order being No. 109 dated 19. 06. 2000 passed by the learned district Judge, Murshidabad in Miscellaneous Case 42/90 be set aside. Let a copy of this order be sent down at once to the learned Court below. Application allowed .