- (1.) This is to consider an application under Article 227 of the Constitution of India which is directed against the Order No.32 dated 31.08.2004 passed by Sri J.G. Chatterjee, the learned Additional District Judge of Second Court , Barasat.
(2.) The learned Judge passed the impugned order in considering an application under section 47 of the Civil Procedure Code (hereinafter referred to as 'Code' only). It appears from the said order that the learned Judge was pleased to allow the application under section 47 of the Code and in doing so set aside the Matrimonial Execution Case No.2 of 2001.
(3.) It appears further that one Dhananjoy Majumder brought a suit being Suit No.27 of 1994 for restitution of conjugal rights against his wife, Mahuya Majumder which was decreed ex parts, on 22.09.2000. In the said suit the learned Court allowed the application of the husband giving him the custody of his minor son, namely, Pritam Majumder alias Tubai. An execution case relating to that decree was filed by the husband wherein the husband prayed only the custody of the minor son from his wife. It was alleged that the husband obtained such decree by suppressing the material facts. It is stated that the husband himself filed a case under Act VIII for the appointment of guardian and custody of his minor son before the learned District Judge (vide Misc. Case No.433/93) and the learned District Judge, Barasat after taking evidence of both sides was pleased to dismiss the said prayer of the husband by passing the order No.20 dated 25.3.1996. The said fact was totally suppressed in the Mat. Suit No.27 of 1994 which was decreed ex parte.;