- (1.) There was an eviction case against the petitioner before the Civil Judge (Junior Division), Sealdah being Case No. 459 of 2004. The plaintiff's witness was examined and cross-examined. The defendant/petitioner did not adduce any evidence. That has been recorded in the judgment and decree passed by that Court dated 20th July 2009. However, the Court when on to record "that the instant ejectment case be and the same is allowed on contest with costs against the opposite party." This recording by the learned Judge has been the cause of all the controversy in this civil revision application. This will appear from the subsequent events recounted in this judgment and order.
(2.) Against this decree the petitioner filed an application under order IX Rule 13 of the Code of Civil Procedure which is pending. According to the procedure prevalent in the courts below, in aid of the application under order IX Rule 13, the petitioner also made an application for stay of the decree, pending hearing of this application. This stay application was numbered as Misc. case No. 34 of 2009. It is the order dated 8th September 2009 passed in that stay application which has been assailed in this revisional application.
(3.) The relevant part of this order is reproduced below: "Consequently, since a contested judgment and decree is in force at present, hence an application under Order IX Rule 13 CPC cannot lie against the same. Accordingly, since the Misc. Case itself is untenable in law in view of the existing position, hence the instant stay application arising out of the same cannot also be entertained. Accordingly, in view of the reasons discussed above, the stay application is rejected on contest." Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the opposite party takes a very technical objection. He says that in the decree it is recorded that it was passed on contest. Therefore, the learned court below was fully justified in treating the decree as contested unless records of the court below have been duly corrected substituting ex parte for contested. Therefore, there was nothing wrong in the order of the learned judge of the first instance. On the other hand, Mr. Sabyasachi Bhattacharjee, learned counsel for the petitioner has argued that when it is an admitted position that after taking of the plaintiff's evidence was over, no evidence was adduced on behalf of the defendant, the suit from that point of time proceeded ex parte. He has shown me order17 Rule 2 of the Code of Civil Procedure. He has also cited Prakash Chander Manchanda and another - vs - Janki Manchanda, 1986 4 SCC 699. He contended that it was the duty of the court to examine whether the decree was ex parte or not and then pass an order for stay of the decree pending hearing of the order IX Rule 13 application.;