HARISH TANDON, J. - (1.) THIS revisional application is directed against the judgment and order dated January 31, 2007 passed by the Civil Judge (Senior Division) 4th Court, Alipore in Misc. Case No. 24 of 2006.
(2.) THE petitioner filed an application under section 47 read with Order 21 Rule 97 to 103 of the Code of Civil Procedure challenging the ex parte decree passed in Title Suit No. 103 of 1994 as nullity, having passed against one of the defendant who was dead. Briefly stated the fact, one Ranibala shaw, Sashibala Shaw and Fulkumari Bewa having purchased the premises in question from one Gopal Chandra Paul by a dint of purchase dated November 3, 1947. and after the death of Fulkumari her share devolved upon her two daughters namely Sashibala and Ranibala in equal share and thus the said daughters became the owners to the extent of undivided half share each. The said Ranibala and Sashibala entered into the joint venture agreement with the decree holder/opposite party no. 1 for the development of the property in question and also took a sum of Rs. 2,75,000/- in terms of the said agreement. The decree holder/opposite party no. 1 filed Title Suit No. 103 of 1994 against the said Ranibala and Sashibala praying for a decree for specific performance of the said joint venture agreement with an alternative prayer of refund of the said sum of Rs. 2,75,000/- along with interest. Writ of summons were issued upon the said defendants namely Ranibala and Sashibala and from the report of the process server it was brought to the notice that the said Ranibala died during the pendency of the suit. Upon enquiry, the decree holder/opposite party came to know that the said Ranibala during her lifetime executed and registered a deed of gift whereby she donated her share to her two daughters namely Namita Shaw and Sabitri Shaw. Although apart from the said daughters the petitioner and another daughter namely Anita shaw was deprived. The decree holder/opposite party no. 1 made an application for substitution of the aforesaid two daughters namely Namita Shaw and Sabitri Shaw on the strength of the devolution of interest by executing the said deed of gift and the said application was eventually allowed.
(3.) EVEN after the substitution, the writ of summons were issued upon the aforesaid daughters but they did not appear. Subsequently one of the daughter namely Namita Shaw also died as spinster and decree holder/opposite party no. 1 filed an application for expunction of her name. In spite of service of summons she neither appeared nor contested the said suit by filing written statement. The trial court allowed the said application and the name of the said Namita Shaw was expunged. Ultimately the suit was posted for final hearing and was decreed ex parte on 27th October, 2005 negativing the claim of specific performance of the said agreement but allowing the claim of the refund of Rs. 2,75,000/- along with interest @ 5% per month till realization and a decree for permanent injunction restraining the defendant from alienating, encumbering and/or disposing of the suit property in any manner until the payment of the decreetal amount. The said decree was put into execution. At this juncture the petitioner filed an application under section 47 read with Order 21 Rule 97 to 103 of the code of Civil Procedure which was registered as Misc. Case No. 24 of 2006. Challenging the said decree as nullity and also declaration of his right in respect of his undivided share in the property in question. The principal ground of attack to the said decree in the said application filed by the petitioner is that the defendant no. 2 Sashibala died on January 23, 2000 leaving behind two sons and one daughter and the decree having passed against her is a nullity. It is further alleged that Ranibala had four heirs and only two daughters were made party. It is further alleged that a suit is already filed for cancellation of the aid deed of gift and the same is pending. Lastly it is contended that even if the deed of gift is presumed to be valid upon the death of the sister being spinster her share devolves upon the petitioner being the brother of the said deceased.;