PRASENJIT MANDAL J. - (1.) CHALLENGE is to the Order dated June 22, 5th 2011 passed by the learned Civil Judge (Senior Division), Court, Alipore in Misc. Case No.18 of 2010 arising out of Title Execution Case No.21 of 2001.
(2.) BY an agreement dated November 3, 1971 between Naktala Urban Credit Society Ltd. (opposite party no.1) and M/s. Calcutta Packaging Agency (henceforth shall be called as the 'said firm'), the said firm was inducted as a licensee in the premises in case. Subsequently, the said firm became a lawful occupier by an agreement dated November 3, 1973. Thereafter, the opposite party no.1 instituted a dispute case against the said firm before the Registrar of Cooperative Societies being the Dispute Case No.41/Calcutta of 1980-81 praying for eviction of the said firm from the Society. The said dispute case was disposed of allowing an ex parte award in May 1984 and the said award was put into execution before the learned Assistant District Judge, 3rd Court, Alipore. In that execution case being Execution Case No.21 of 2001, the judgment debtor filed an application under Section 47 of the C.P.C. which was converted into the Misc. Case No.18 of 2010. That application was allowed by holding that the provisions of Section 134(3) of the West Bengal Cooperative Societies Act, 1983 have not been complied with. Accordingly, the execution case was dismissed. Upon hearing the learned Advocate for the petitioner and on going through the materials on record, I find that the learned Executing Court has exceeded his jurisdiction in passing the impugned order. The West Bengal Cooperative Societies Act, 1983 has been repealed and now, the West Bengal Cooperative Societies Act, 2006 which came into force w.e.f. January 18, 2011 is in force. The impugned order was passed on June 22, 2011 under the provisions of the old Act which was no more in force at that time. Now, the impugned order is contrary to the provisions of Section 145(3) of the 2006 Act and so, the impugned order cannot be sustained. While passing the impugned order, the learned Trial Judge has recorded that the ex parte award is a void decree and thus, he allowed the application under Section 47 of the C.P.C. The Executing Court dealing with an application under Section 47 of the C.P.C. cannot go behind the decree. But, in the instant case, while exercising the jurisdiction under Section 47 of the C.P.C., the learned Trial Judge has recorded that the award is void. In dealing with the application under Section 47 CPC, the Executing Court cannot pass such orders. The learned Executing Court has, therefore, committed illegality in passing the impugned order which cannot be supported.
(3.) THE application succeeds and is, therefore, allowed. The impugned order is hereby set aside. The learned Executing Court is directed to hear out the application under Section 47 of the C.P.C. afresh in presence of both the sides and pass appropriate orders thereon afresh. The said application under Section 47 of the C.P.C. must be disposed of within a period of 30 days from the date of communication of this order to him.;