Amitava Lala, J. - (1.) This is an application under Section 115 of the Code of Civil Procedure challenging an order passed by the learned 2nd Assistant District Judge at Alipore, 24 Pgs. (South) being order No. 53 dated 8th May 1987.
(2.) By such order, an application of the respondent/tenant under Section 47 of the Code of Civil Procedure was allowed on contest and the Title Execution Case No. 11 of 1978 was dismissed. The import of the order is that as because Section 17(2) of the west Bengal Premises Tenancy Act was not heard out by the Court on merit, but, dismissed for default and consequently, suit was decreed ex parte in favour of the petitioner/landlord. Such decree cannot be enforceable.
(3.) Factually, after filing of the suit, the writ of summons was served upon the opposite party/defendant/tenant on 31.3.77 and, in turn, an application was made by the tenant under Section 17(l) of the West Bengal Premises Tenancy Act, 1956 on 30.4.77 followed by an application under Section 17(2) and (A) & (B) of the said Act on the same day. However, since nobody appeared in spite of giving adjournments, the application under Section 17(2) of the Act was dismissed. Several adjournments were taken for filing written statement, but, no written statement was filed by the tenant/respondent. Consequently, an ex parte decree was passed. An application was made under Order 9 Rule 13 of the Code of Civil Procedure, which was dismissed. An appeal was preferred from such order of dismissal, which was also dismissed. The decree was put into execution. In the execution proceeding, the impugned application under Section 47 of the Code of Civil Procedure was taken out by the respondent/tenant to obtain the order, which was allowed. It has been submitted before this Court that the decree was originally passed on 21.3.78 and the application under Section 47 of the Code of Civil Procedure was filed on 28.8.86. Therefore, long eight years are elapsed. Neither the question of delay nor the conduct of the respondent was taken into account by the executing Court. The executing Court held that since hearing of the application under Section 17(2) of the Act was not held in merit, illegality lies in passing decree, therefore, law of limitation cannot be made applicable and jumped upon a conclusion.;