- (1.) This appeal is directed against an order passed by the 12th Bench of City Civil Court, Calcutta, allowing the application under Section 144 of C.P.C. and directing the possession of suit premises to be delivered to the applicant/respondents.
(2.) The appellant before us filed a suit for recovery of possession of the disputed premises under S. 6 of the Specific Relief Act, claiming that he was a tenant in possession in the said premises and that he had been forcibly dispossessed by the defendant/respondents, who claimed to have purchased the property from the original landlord Fide Hussain Ahmed Bhoi & Zainal Baid Ahmed Bhoi, a firm, this suit being No. 107 of 1989 was decreed ex parte on 4-6-1990. On the strength of this decree, the appellant obtained possession on 22-5-1992. The respondents thereupon moved an application for setting aside of the ex parte decree. This was allowed and the ex parte decree was set aside on 5-5-1993. The respondents thereafter initiated the proceedings under S. 144, C.P.C. and sought restitution of the possession of property on the ground that the ex parte decree on the basis of which the appellant had taken possession having been set aside, they were entitled to be restored the possession of the premises, to be put in the position which they occupied before passing to the said decree. Plaintiff/ appellant got the suit dismissed on 22-7-1993 during pendency of the proceeding for restitution.
(3.) This application was contested. In a written objection filed on behalf of the appellant, it was asserted inter alia, that the application was not maintainable and the suit having been dismissed for non-prosecution on 22-7-1993, the miscellaneous proceedings under S. 144 also could not continue. Certain other objections were also raised in the course of the argument before the Ld. Trial Court. It was found that the provisions of S. 144 were applicable in the present case and that the plea that the respondent was in wrongful possession was not available in the proceedings under S. 144, C..P.C.;