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2015 DIGILAW 488 (CAL)

ALPANA DAS v. SUBRATA DAWN

2015-06-16

SHIVAKANT PRASAD

body2015
Judgment : SHIVAKANT PRASAD, J. The instant writ petition is directed against the order dated 20th July, 2013 passed by Learned Civil Judge, Junior Division, Second Court at Sealdah, District 24 Parganas (South) in Misc. Case No. 21 of 2005 arising out of Title Execution Case No. 12 of 2001. The facts leading to this application is that Ratanlal Dawn, since deceased, father of petitioner instituted Title Suit No. 245 of 1998, praying for eviction of the petitioner from the suit property. The suit was contested by the petitioner as a defendant stating, inter alia, that from birth of the petitioner, she has been residing in the suit premises and carried out some kind of construction in the suit premises by investing Rs. 50,000/ and that the petitioner was given possession in the suit property as she was facing great difficulty to stay at her matrimonial house and since the plaintiff was in need of accommodation, petitioner was requested to vacate the suit premises. The said suit for eviction and recovery of possession was decreed on contest against the defendant/ the present petitioner by judgment dated December 22, 2000 which decree was affirmed up to the Hon’ble High Court at Calcutta. The original plaintiff initiated Title Execution Case No. 12 of 2001 for the execution of the decree aforesaid who died on January 28, 2004 leaving behind him the widow, three daughters and two sons who have jointly inherited equal 1/6 undivided share in the said property of the deceased Ratanlal Dawn. The Opposite Parties Nos. 1 and 2 were substituted in Title Execution Case No. 12 of 2001 by the order dated 15th January, 2005 and on 10th February, 2005 writ of possession was re-issued. On 14th March, 2005, the Opposite Parties Nos. 1 and 2 filed an application for police help which was registered as Misc. Case No. 21 of 2005. By order dated July 16, 2005 learned Executing Court directed to proceed with the execution proceeding ex-parte as the petitioner could not appear on January 18, 2005. Shrimati Archana Das, one of the daughter of Ratanlal Dawn filed an application under Order 21, Rule 97, 99, 100 and 101 of the Code of Civil Procedure which was registered as Misc. Case No. 48 of 2005. On December 2, 2006 the Opposite Parties Nos. Shrimati Archana Das, one of the daughter of Ratanlal Dawn filed an application under Order 21, Rule 97, 99, 100 and 101 of the Code of Civil Procedure which was registered as Misc. Case No. 48 of 2005. On December 2, 2006 the Opposite Parties Nos. 3 and 4 prayed for adding them instead and in place of the original decree holder. The petitioner filed an application on March 17, 2007 praying for modification of the order dated January 20, 2007and by another application prayed for stay of the execution proceeding. She was allowed to inspect of deed of gift dated December 13, 2002 on May 29, 2007. The petitioner along with the another sister also filed Title Suit No. 157 of 2007 in the Court of learned Civil Judge, Senior Division at Sealdah, District- 24-Parganas (South) for a decree of declaration that the deed of gift dated December 13, 2002 is null and void, forged, manufactured, fraudulent and the opposite parties Nos. 1 and 2 have not acquired any right, title and interest in the suit property by virtue of the deed of gift and that the sale deed executed in favour of the Opposite Parties Nos. 3 and 4 by the Opposite Parties Nos. 1 and 2 is invalid, illegal and further prayed for partition of 1/6th share of the petitioner in the suit property and for permanent injunction against the defendants in the said suit from disturbing the peaceful possession of the petitioner in the suit property. The petitioner’s application dated December 4, 2007 praying for vacating the order dated January 15, 2005 and January 20, 2007 which application are still pending for disposal on November 11, 2010. The petitioner also filed an application under Order 21 Rule 100 and 101 read with Section 47 of the Code of Civil Procedure on January 18, 2011 praying for rejection of Title Execution Case No. 12 of 2001 and Misc. Case No. 21 of 2005 upon declaration of her right, title and interest in respect of her share in the suit property and the same was registered as Misc. Case No. 3 of 2011. The said applications are still pending for disposal on February 28, 2011 whereas the learned Judge fixed March 9, 2011 for further hearing of the case. Case No. 21 of 2005 upon declaration of her right, title and interest in respect of her share in the suit property and the same was registered as Misc. Case No. 3 of 2011. The said applications are still pending for disposal on February 28, 2011 whereas the learned Judge fixed March 9, 2011 for further hearing of the case. It is contended that opposite parties did not produce the original deed of gift dated December 13, 2002 for inspection of the same by the petitioner despite the direction of the learned Court, so the petitioner filed an application under Order 26 Rule 10 A of Code of Civil Procedure, inter alia, praying for appointment of handwriting expert for scientific examination of the handwriting/signature of Ratanlal Dawn in the deed of gift with the admitted signature appearing in the record of the suit. It is contended that by suppressing the material facts, the opposite parties preferred an application under Article 227 of the Constitution of India before the Hon’ble High Court at Calcutta being in C.O. No. 1146 of 2011 praying of expeditious disposal of the hearing of the suit. The said revisional application was disposed of on April 13, 2011 by directing the Executing Court to dispose of the execution proceeding along with all pending interlocutory applications within a month from the date of the order and the matter was listed on 15th June, 2011 for reporting the development in the execution case. It is contended on behalf of the petitioner that the aforesaid three applications were filed prior to the order passed in C.O. No. 1146 of 2011 and the learned Executing Court has proceeded on a misconception that he has to dispose of the execution proceeding without disposing of interlocutory applications. By an order dated 21.05.2011, the executing Court rejected two applications filed by the petitioner without assigning any reason. It was observed therein that the disposal of the pending interlocutory applications by way of rejection ought not to have been made mechanically in view of the order dated 13.04.2011. Accordingly, the learned Judge of the executing court was required to apply his mind and to give reasons in support of his order. The petitioner preferred a revision challenging the order dated May 21, 2011, passed by the learned Civil Judge, Junior Division, Second Court at Sealdah, District 24 Parganas (South) in Misc. Accordingly, the learned Judge of the executing court was required to apply his mind and to give reasons in support of his order. The petitioner preferred a revision challenging the order dated May 21, 2011, passed by the learned Civil Judge, Junior Division, Second Court at Sealdah, District 24 Parganas (South) in Misc. Case No. 21 of 2005 arising out of Title Execution Case No. 12 of 2001 being C.O. No. 1916 of 2011. The said revisional application was disposed of with direction to deal with the applications pending before the Executing Court. The learned Court below allowed the petitioner for comparison of the alleged signature of late Ratanlal Dawn appearing in the deed of gift with his admitted signature in the record of Title Execution Case and of the Title suit No. 245 of 1998 and to submit a report. After allowing the application for appointment of handwriting expert the petitioner filed an application on December 2, 2011 for determination of the item of comparison, the disputed signature with admitted signature as would be available from partnership Deed dated April 1, 2000 made between Ratanlal Dawn and the petitioner Arpita Dawn and that in Title Suit No. 245 of 1998, where Ratanlal Dawn appeared in person and put his signature in the evidence sheet in the Court but without considering, learned court sent irregular documents for comparison and for that entire report of the handwriting expert vitiated the main intent of handwriting expert. So, the petitioner filed an application under Section 151 of Code of Civil Procedure praying not to accept the report of the handwriting expert and further to send the documents mentioned in the petition filed by the petitioner on December 2, 2011 for comparison. This is the said application which has been rejected by the learned Judge without any discussion with an exemplary cost of Rs. 5000/- by order dated 20 July, 2013 which is under revision before this Court on the grounds, inter alia, that the learned Judge acted illegally and with material irregularity in rejecting the application under Section 151 of the Code of Civil Procedure on a misconception of law on contest with cost of Rs. 5,000/- and failed to consider that the disputed signature is required to be compared with the admitted signatures, as mentioned in the application dated December 2, 2011, by handwriting expert in comparison with the admitted signature. 5,000/- and failed to consider that the disputed signature is required to be compared with the admitted signatures, as mentioned in the application dated December 2, 2011, by handwriting expert in comparison with the admitted signature. It would be apt to reproduce the order under challenge, which reads thus, “ Parties filed hazira. o.p. files petition u/s 151 CPC. Copy served. Objection raised. Hd advocate of both sides on petition u/s 151 CPC I.without going discuss on this petition, the petition is preliminary rejected on contest with cost of Rs. 5,000/- In view of so many orders of Hon’ble High Court. To 22/8/13 for perusal of the record and F/Order if necessary.” It is true that there has been direction by the Single Bench of this Court in two separate revisionsal application as discussed above but on going through the order impugned, this court is of the view that the learned Judge appears to have acted illegally in rejecting the application under Section 151 of Code of Civil Procedure without assigning any reason but at the same time the learned court posted the case for perusal of the record and necessary order. Therefore, the learned Judge ought to have considered the specific averment made in the petition under Section 151 of the Code of Civil Procedure and disposed of the same on its merit. Ergo, I find merit in this revisional application and is allowed without any order as to costs, however, with a positive direction to the learned Judge to dispose of all the three applications submitted by the petitioner in letter and spirit of the direction of the Single Bench of this Hon’ble Court and to decide and dispose of the issues between the parties as expeditiously as possible. In the revisional application registered under C.O. No. 3815/13, petitioner has challenged the order dated August 22, 2013 passed by the learned Civil Judge, Junior Division, 2nd Court, Sealdah, District- 24Parganas (South) in Misc. Case No. 21/05 arising out of Title Execution Case No. 12/01, which appears has been fixed for argument of Misc. Case, written argument to be filed on the date fixed on 16.11.2013. Case No. 21/05 arising out of Title Execution Case No. 12/01, which appears has been fixed for argument of Misc. Case, written argument to be filed on the date fixed on 16.11.2013. This date has been fixed by the learned Judge in view of the order of this Hon’ble High Court, it would appear from the order passed in C.O. 1916/2011 that revisional application was filed challenging the order dated May 21, 2011 passed by the learned Judge in Misc. Case No. 21/05 arising out of Title Execution Case No. 12/01 in which the Single Bench of this Hon’ble Court requested the executing Court to deal with the applications under Order 26 Rule 10A of the Code of Civil Procedure and an application for stay that were rejected by the order dated 21.5.2011, Miscellaneous Case No. 3 of 2011 [arising out of an application under Order 21, Rules 100 and 101 read with Section 47 of the Code filed by Smt. Archana Das, one of the daughters of Ratanlal Dawn, the decree holder (since deceased)], an application filed on 04.12.2007 seeking vacation of orders dated 15.01.2005 and 20.01.2007 and an application under Order 21, Rule 97, 99, 100 and 101 of the Code, registered as Miscellaneous Case No. 48 of 2005 are also pending before the executing Court and in that view of the matter the Single Bench of this Hon’ble Court requested the learned Court below to deal with the said applications as well as an application stated to have been filed by the judgment-debtor on 17.3.2007 seeking modification of order dated 28.01.2007, if at all the same is found pending, within a month from date. The executing Court was requested that if it considers necessary, fix date for hearing on day to day basis so that the orders passed by it on the applications filed by the judgment-debtor referred to above can be placed before this Court on 12.08.2011. It is not understood as to whether any report was submitted with regard to further development in the execution in terms of the direction passed by the Single Bench of this Court. Be that as it may, the order impugned which reveals the date fixed for argument of Misc. Case No. 21/05 arising out of Title Execution No. 12/01 appears to have been passed in terms of the direction as passed in the said civil revision. Be that as it may, the order impugned which reveals the date fixed for argument of Misc. Case No. 21/05 arising out of Title Execution No. 12/01 appears to have been passed in terms of the direction as passed in the said civil revision. Although, it cannot be said that order under revision suffers from any illegality and with material irregularity, nevertheless, this must be born in mind by the learned executing Court that all the applications should have been fixed for disposal one after another even by posting the same on day to day basis. Therefore, it was expedient on the part of the learned Judge who ought to have fixed the date for hearing of the applications pending before him in all such cases and to dispose of the same simultaneously on day to day basis and thereafter, to proceed to decide the police help application in aid of execution of the case. Accordingly, the C.O. No. 3815 /13 is disposed of. Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.