- (1.) THE propriety of an order being no. 114 dated 16. 4. 2008 passed by the learned executing Court in Misc. Case no. 144 of 2006 arising out of Ejectment Case no. 14 of 2003, is under challenge in this application under Article 227 of the constitution of India at the instance of the judgment debtor/petitioner. By the said order the petitioner's application under Section 47 of the Code of Civil procedure was rejected by the learned Executing Court on contest.
(2.) HEARD Mr. Chatterjee, learned Advocate appearing for the petitioner and mr. Banerjee, learned Senior Counsel appearing for the decree holder/opposite party. For proper appraisal of the merit of this revisional application, following facts are required to be taken note of :- a) The decree holder/opposite party filed a suit for eviction against his admitted tenant namely Bhusan Mohan Roy since deceased. b) The said Bhusan Mohan Roy died intestate during the pendency of the said suit. Some of his heirs were substituted in the suit within the prescribed period. c) Pursuant to a direction passed by the learned Trial Judge, on 20th september, 1989, the substituted heirs of the deceased defendant disclosed the names and addresses of the two daughters of the original defendant who were not substituted in the said suit on the death of the original defendant. The said two daughters were Smt. Hira Das and Smt. Sonamoni Roy Chowdhury. d) On such disclosure, the plaintiffs added them as defendants in the said suit. e) Notice of the said suit was also served upon them but they did not come forward to contest the said suit. f) The said suit was ultimately dismissed by the leaned Trial Court on 9th September, 1992. g) Being aggrieved by and dissatisfied by the judgment and decree of the learned Trial Judge, the opposite party herein preferred an appeal being F. A. No. 17 of 1995 before this Hon'ble Court. The said appeal was allowed ex parte. Thus, a decree for eviction was passed against the substituted heirs of the original defendant. An application for review was filed by one of the heirs of the original defendant but the said review application being RVW No. 2918 of 2004 was also dismissed. h) Thereafter an execution case was filed by the decree holder/opposite party as the judgment debtors did not vacate the suit premises in compliance of the said eviction decree. i) Then the judgment debtors started making successive attempts to frustrate the said execution proceeding by filing several application severally. Initially an application under Section 47 of the Code of Civil procedure was filed by the son of the original defendant. The said application which was registered as misc. Case no. 59 of 2006 was rejected by the learned Executing Court on 17th november, 2006 vide Order No. 90. j) Another application under Section 47 of the Code of Civil Procedure, which was filed by the present petitioner being Misc. Case No. 144 of 2006 was also dismissed on contest by the learned Executing Court by the same order being no. 90 dated 17th November, 2006. k) For challenging the rejection of those two applications under Section 47 of the Code of Civil Procedure as aforesaid, two revisional applications were filed by the said judgment dectors separately. The revisional application which was filed by the son being C. O. No. 904 2007 was rejected by this Court on contest on 14th January, 2008. But the revisional application which was filed by the petitioner herein being C. O. No. 358 of 2007 was allowed by Hon'ble justice Somadder on 20th February, 2008. His Lordship was pleased to set aside the impugned order as the learned Executing Court did not supply any reason in support of his conclusion in the order impugned therein. The said Misc. Case was, thus, remanded back to the learned Executing Court for fresh disposal. l) Apart from filing of the said application under Section 47 of the Code of civil Procedure, the petitioner herein also filed another Misc. Case being misc. Case no. 343 of 2005 under Order 21 Rule 101 of the Code of Civil procedure. The said Misc. Case was also rejected on contest on 27th January, 2006 by the learned Executing Court vide Order No. 58. The order passed in the said proceeding has attained its finality. The petitioner herein could not establish her independent right in the suit property. m) The petitioner's application under section 47 of the Code of Civil Procedure which was remanded back to the learned Executing Court for reconsideration, was again rejected on contest by the impugned order. The instant revisional application is directed against the said order.
(3.) MR. Chatterjee, learned Advocate appearing for the petitioner submitted that while rejecting the petitioner's said application after remand, the learned executing Court again has not given any reason in support of his conclusion. By referring to the points of objection mentioned in the petitioner's application under Section 47 of the Code of Civil Procedure, Mr. Chatterjee submitted that not a single objection raised by his client therein, was considered by the learned Executing Court, while passing the impugned order. Non-consideration of the specific objections raised by his client, according to Mr. Chatterjee, is very serious in the said case, as according to him, any order passed in disregard of the order of remand can not be retained on record.;