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2014 DIGILAW 384 (CAL)

Nurul Huda v. Sk. Bhola

2014-04-25

MRINAL KANTI CHAUDHURI

body2014
JUDGMENT : Mrinal Kanti Chowdhuri, J. Affidavit of service filed by the petitioner in court today be kept with the record. 2. None appears on behalf of the opposite parties. 3. Heard learned advocate for the petitioners and perused the materials on record. 4. This application under Article 227 of the Constitution of India is preferred against the order dated 20.08.2011 passed by the learned Civil Judge, Junior Division at Sealdah in Title Execution Case No. 43 of 1997. 5. It is submitted by the learned advocate for the petitioners that he put the decree into execution and got the possession. Subsequently, the legal heirs of the defendant-judgment-debtor forcibly entered into one room of the suit property. Therefore, he filed a petition under Section 151 of the Code of Civil Procedure before the learned court below for necessary order so that the legal heirs of the defendant-judgment debtor may be evicted from the room of the suit premises. The learned court below vide order dated 20.08.2011 rejected the petition filed by the petitioner under Section 151 of the Code of Civil Procedure on the ground that decree-holder got delivery of possession of decreetal property on 20.01.2007. There is no scope of issue fresh writ. Being aggrieved by the said order, the petitioners/decree-holder has preferred this revisional application. 6. On close and careful perusal of the materials on record and having regard to the submission made by the learned advocate for the petitioner, it appears that the petitioner got a decree and obtained delivery of possession by executing the decree. Subsequently, one of the legal heirs of the defendant forcibly entered into one of the rooms of the suit property. 7. Now, the question that comes up for consideration whether the petitioner is entitled to get the trespasser evicted by reviving the earlier execution case by filing petition under Section 151 of the Code of Civil Procedure . 8. The learned advocate for the petitioners cited a decision of this Court reported in 2012(1) CLJ 619 . It appears from the said judgment that this Court passed an order to the effect that the decree-holder need not file a separate suit and they can file an application for revival of the execution application. Similar order has also been passed by a Division Bench of this Court in 1998(1) CLJ 348 . It appears from the said judgment that this Court passed an order to the effect that the decree-holder need not file a separate suit and they can file an application for revival of the execution application. Similar order has also been passed by a Division Bench of this Court in 1998(1) CLJ 348 . Similar facts and circumstances has also appear in the present case. 9. It appears from the annexure-A of the petition that an appeal was preferred by the defendant-judgment debtor and the same was dismissed. 10. Considering the facts and circumstances of the case and number of decisions of law cited above, the learned court below was not justified in refusing the petition filed by the decree-holder under Section 151 of the Code of Civil Procedure. Therefore, the impugned order passed by the court below suffers from jurisdictional error and cannot sustain in law. 11. The petition filed by the petitioner under Section 151 of the Civil Procedure Code on 8th January, 2010 praying for revival of the Execution Case being 43 of 1997 stands allowed. The order passed by the court below on 20th August, 2011 is set aside. 12. This revisional is, accordingly, disposed of. 13. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties in compliance of necessary formalities.