Joytosh Banerjee, J. - (1.) This is tenant/defendants appeal against order No. 44 dated 19.9.1985 by which the learned Chief Judge, City Civil Court dismissed a proceeding under Order 9 Rule 13 Civil Procedure Code, which was started by the defendant/tenant for setting aside the ex paste decree passed in ejectment suit No. 574/81 by the said City Civil Court on 19.11.81 and the ground taken by the tenant/defendant for the said prayer was non-service of summons.
(2.) Briefly stated the facts leading to the filing of the instant Misc. Appeal are that plaintiff/respondent filed a suit for eviction (ejectment Suit No. 5741/81) against the defendant/tenant before the City Civil Court, Calcutta on 4.7.81. The summons were issued both by ordinary manner and also by registered post with A.D. After the service of summons by registered post, the date was fixed for ex parte hearing when the defendant/tenant failed to turn up in spite of the service of summons. On 19.11.1981, the suit was heard and decreed ex parte. On 22.3.82, the defendant/tenant filed an application under Order 9 Rule 13 Civil Procedure Code praying for restoration of the suit after setting aside the ex parte decree dated 19.11.81. That proceeding too was dismissed for default when decree-holder/opposite party was ready but the petitioner/tenant did not take any step. Thereafter on 22.12.84, the defendant/tenant filed another application under Section 151 Civil Procedure Code for setting aside the order of dismissal dated 24.11.84. That application was finally allowed on payment of cost on 23.3.85 and the order of dismissal dated 24.11.84 was set aside and the proceeding under Order 9 Rule 13 Civil Procedure Code whick was registered as a Misc. Case was restored to its original file and number. Subsequently, on 27.7.85, 17.8.85 and 24.8.85 the Misc. Case was heard and by an order dated 19.9.1985, the learned Chief Judge dismissed the proceeding under Order 9 Rule 13 Civil Procedure Code. Hence this appeal.
(3.) Through the memo of appeal, the appellant/tenant has urged that there was no service of summons in connection with the aforesaid ejectment suit and therefore the ultimate order passed by the learned Chief Judge dismissing the proceeding is tainted with illegality.;