TUSHAR MALLIKA DEVI Vs. UNITED BANK OF INDIA LTD. AND ANR.

JUDGEMENT

(1.) THIS appeal arises out of an application under Order 21 Rule 90 of the Code of Civil Procedure.

(2.) THE facts leading up to the present appeal are that the Respondent No. 1, which is a Banking Company, advanced money to the Ferndale (Private) Ltd. Shillong, Respondent No. 2. The headquarters of Respondent No. 2 is in Calcutta but the principal place of business is Shillong where it owens the properties known as "Ferndale". A hotel used to be run in this building and it is situate in this area known as 'normal area' when the provisions of the Code of Civil Procedure apply. Respondent No. 2 had taken a sum of (sic) two lacs as loan from the Respondent No. 1 on a mortgage of the Ferndale properties under a deed dated the 25th January 1946. A sum was brought on the basis of the aforesaid mortgage in the year 1950. On the 23rd February 1954 the suit was compromised and a decree was given to the Respondent No. 1 against the Respondent No. 2 for a sum of Rs. 2,33,000/ - by instalments. The Appellant though not impleaded as a party to the suit endorsed the compromise and the endorsement runs as follows:

(3.) AN application under Order 21. Rule 90 of the Code of Civil Procedure was filed by the Appellant on the 18th May, 1990. The case was fixed for hearing on the 2nd January 1961 by an order dated the 1st December, 1960. On the 2nd January 1961, it appears that an application was filed for adjournment of the case due to the these of the Appellant. The case was adjourned to 9th January 1961 for hearing. On that date again an application was filed by the Appellant for adjournment. Orders were reserved on this application and 16th January 1961 was fixed orders. The Sub -ordinate Judge could not pass any order on the 16th January, 1961 and the application was adjuced on merits on the 6th March, 1961. The grievance of the Appellant is that the application was disposed of without giving any opportunity to the Appellant to substantiate her case. When an application was made on the 9th January 1961 for adjournment of the case, 16th January 1961 was fixed for passing orders on the said application and without disposing of that application and without giving an opportunity to the Appellant to produce evidence to Subordinate Judge rejected the application on the 6th March 1961. The order -sheet of the 9th January, 1961 runs as follows: