Prasenjit Mandal, J. - (1.) THIS application is directed against the Order no.316 dated April 25, 2003 and June 16, 2008 passed by the learned Civil Judge (Senior Division), 7th Court, Alipore in Misc. Case No.22 of 1998 and Misc. Case No.10 of 2003 respectively.
(2.) THE short fact necessary for the purpose of disposal of this application is that the predecessor-in-interest of the petitioner, namely Lilabati Banerjee, instituted a suit being Title Suit No.168 of 1967 for partition claiming one-fifth share in the suit property as described in the schedule of the plaint. THE said suit was renumbered subsequently as Title Suit No.173 of 1968 and it was decreed in the preliminary form on March 13, 1968. THEreafter, the heirs of the original plaintiff, that is, the petitioner and others filed an application under Section 4 of the Partition Act for pre-emption and that application was converted into the Misc. Case No.8 of 1988. That Misc. case was allowed ex parte on March 14, 1992. THEreafter, the said suit was decreed in the final form on December 4, 1995. THEn an execution case bearing Execution Case No.7 of 1995 was initiated for execution of the final decree. THE possession of the property under pre-emption was delivered to the pre-emptor by evicting Smt. Radharani Mallick, that is, the predecessor-in-interest of the opposite parties on September 7, 1996. THEreafter Smt. Mallick filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte order dated March 14, 1992 passed in Misc. Case No.8 of 1998 and that application was converted into the Misc. Case No.40 of 1996. Smt. Mallick filed another application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte final decree and that application has been converted into the Misc. Case No.39 of 1996 subsequently, renumbered Misc. Case No.23 of 1997 and again renumbered as Misc. Case No.21 of 1998. The contention of the petitioner is that they did not get any notice of the Misc. Case No.40 of 1996 (subsequently renumbered as Misc. Case No.24 of 1997) and then again renumbered as Misc. Case No.22 of 1998. That misc. case was allowed ex parte against Lilabati Devi, predecessor-in-interest of the petitioner on November 21, 1998. In C.O. No.3123 of 1998, the order of setting aside the order of pre-emption was affirmed on December 15, 1998. But, Lilabati Devi was not served on a notice in the C.O. No.3123 of 1998 and she did not appear in the said C.O. case at all. Lilabati Devi filed an application under Section 151 of the C.P.C. on November 20, 1999 in the Misc. Case No.22 of 1998 for recalling the order dated November 21, 1998. Thus, I find that the application for recall of the said order had been filed after one year from the date of the order dated November 21, 1998. That application was rejected by the learned Trial Judge by the Order No.316 dated April 25, 2003. Subsequently, Lilabati Devi filed an application for review of the order dated April 25, 2003 and that review application being Misc. Case No.10 of 2003 was also dismissed by the impugned order dated June 16, 2008. Being aggrieved by such orders of rejection of the application under Section 151 of the C.P.C. and the application for review, the petitioner has filed this application. Now, the point for consideration is whether the impugned orders should be sustained.
(3.) UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the facts as stated above, are not in dispute at all. By the earlier order dated April 25, 2003, the learned Trial Judge rejected the application under Section 151 of the C.P.C. filed by Lilabati Devi for setting aside the ex parte order passed in Misc. Case No.22 of 1998. As per order No.105 dated July 11, 1997 in Misc. Case No.22 of 1998, on consent of both the sides, the service of summons upon the opposite party nos.4 to 10 was dispensed with. Subsequently, in the Civil Revision Case No.3123 of 1998, the Hon?ble Court has observed that the order was passed of the Civil Revision Case in the presence of Lilabati Devi. Thereafter, the learned Trial Judge has observed that the ground of non-service of summons upon Lilabati Devi could not be believed. From the above facts, it appears that by the order dated July 11, 1997 service of notice of the Misc. Case No.40 of 1996 renumbered as Misc. Case No.22 of 1998 upon Lilabati Devi was dispensed with. Lilabati Devi also participated in the C.O. No.3123 of 1998. So, her contention that she was unaware of the Misc. Case No.22 of 1998, cannot be accepted. I, therefore, hold that the learned Trial Judge has rightly rejected that belated application under Section 151 of the C.P.C. There is no mistake or error on the part of the learned Trial Judge in passing the impugned order.;