Mir Dara Sheko, J. - (1.) Hearing is concluded.
(2.) Mr. Suprabhat Bhattacharya, learned Advocate representing the petitioners during course of argument tried to impress upon the Court about the scope of the provision laid down under Order 9, Rule 13 of the Code of Civil Procedure in setting aside the decree passed by the learned Trial Court ex parte. He further submitted that in the case on hand, despite several opportunities, the opposite parties/appellants/defendants, who will be called on hereafter only as the opposite parties did not submit written statement as a result of which the suit was posted for hearing ex parte, which started on March 08, 2002 and concluded on September 26, 2002 and the opposite party No. 1 even remaining silent for a few more years in between filed the impugned application under Order 9, Rule 13 accompanying an application under Section 5 of the Limitation Act on March 06, 2007. Supporting the order dated May 29, 2008 passed by the learned Civil Judge (Junior Division), 1st Court, Tamluk in J. Misc. Case No. 18 of 2007 arose out of that Title Suit No. 35 of 1995 by which the said J. Misc. Case was dismissed on contest and criticising vehemently the impugned order dated May 18, 2013 passed by the learned Additional District and Sessions Judge, Fast Track 2nd Court, Tamluk Purba Medinipur in Misc. Appeal No. 66 of 2008 reversing the said order of learned Trial Court prayed for allowing revisional application filed under Article 227 of the Constitution of India, Mr. Bhattacharya submitted that learned Lower Appellate Court did not consider at all the scope of the provision laid down under Order 9, Rule 13, rather acted beyond the scope and jurisdiction, as a result of which the petitioners suffered from illegality and perversity of the order which is liable to be set aside. Mr. Bhattacharya relied particularly upon paragraph 9 of the case of Achutananda Baidya v. Prafullya Kumar Gayen and Ors, reported in (1997) 5 SCC 76 so that interference be made by this revisional Court by making judicial review.
(3.) Mr. B. Gayen, learned Advocate, being assisted by Mr. S. Ghorai representing the opposite party No. 1/appellant/defendant, who will be called on hereafter as the opposite party per contra referred to the provision of Order 43, Rule 1(u) to submit that against the impugned order appeal lies and not the application like the present one. He further submitted that when the learned Court below in exercise of jurisdiction recorded the appropriate order by stretching the relief in favour of the opposite party No. 1 to find contest in the suit then in the instant nature of proceeding the High Court in the garb of judicial review should not interfere with.;