Shibani Gupta & Ors vs Reba Mondal
2022 Latest Caselaw 5545 Cal

17.08.2022
Sl.No. 03
Ct.No.3
Amalranjan
             IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                     APPELLATE SIDE

                       SAT 143 of 2022
                            With
                        CAN/1/2022

                   Shibani Gupta & Ors.
                            VS
                       Reba Mondal


              Mr. Souradipta Banerjee
              Ms. Fatima Hassan
                              ...for the appellants/defendants

              Mr. Srijib Chakraborty
              Mr. Anirban Ghosh
              Mr. Aditya Mondal
                                 ...for the respondent/plaintiff

The suit is of 2002.

It ultimately resulted in dismissal of the first

appeal (Title appeal No. 3 of 2015) on 1st July,

2022.

It was dismissed because an application

under Section 5 of the Limitations Act for

condonation of delay in preferring the appeal

was dismissed by the learned first appellate

court.

Although, this ejectment proceeding has a

history of over 15 years, it was never decided on

merits. This was, in our opinion, completely due

to the fault of the appellants/defendants.

In the learned first court their defence was

struck off for non-compliance of conditions to

defend the suit imposed by the court.

Against the ex parte decree passed by the

first appellate court on 1st March, 2006, the

appellants/defendants pursued all the remedies

available to her. It started with an application

under Order IX Rule 13 of the Civil Procedure

Code, which was dismissed on 23rd March, 2011.

It was followed by an application being made

before that court to set aside that order which

was also dismissed on 18th January, 2013. This

dismissal order was challenged before this court

under Articles 226/227 of the Constitution,

which met with the same fate on 19th December,

2014.

Having exhausted these remedies, the

appellants/defendants filed the said first appeal

(Title Appeal No. 3/2015) before the learned first

appellate court along with a Section 5

application. On 30th June, 2016, this appeal was

dismissed for default. Efforts were made to

restore this appeal. It was restored by the court

on 27th April, 2022.

On 1st July, 2022, this appeal together with

the Section 5 application came up for

consideration before the learned first appellate

court. The learned judge was of the view that

the long delay had not been explained.

The law permits the judgment debtor in an

ex parte decree to apply before the court to set it

aside under Order IX Rule 13 of the Civil

Procedure Code. At the same time, preferment of

that application does not debar a party from

preferring a substantive appeal from the ex parte

decree.

Availing of that right the judgment debtor

preferred the Order IX Rule 13 application which

failed.

The law also permits a person to approach

the High Court under Articles 226/227 of the

Constitution when no appeal is allowed from an

order of a civil court. The appellants approached

this court under Articles 226/227 of the

Constitution challenging the order passed by the

learned civil court dismissing the application

under Order IX Rule 13 of the Civil Procedure

Code and/or the order refusing to revise that

order.

Although, the law granted these remedies to

the appellants, it did not allow exclusion of time

taken to prosecute these proceedings while

calculating the period of limitation to prefer an

appeal from an ex parte decree.

Therefore, the appellants were faced with

the task of explaining the long period of delay in

preferring the first appeal.

The learned judge of the first appellate court

after discussing the facts of the case, including

prosecution of various proceedings by the

appellants come to the conclusion that they had

been unable to explain the delay. Hence, the

Section 5 application connected with the appeal

was dismissed. It followed that the appeal was

also dismissed.

The decision of the learned judge was on

analysis of the facts and law of the subject.

We do not think that the learned judge has

appreciated the facts or the law in such a

manner so as to call for interference by this

court on second appeal.

In those circumstances, we refuse to

entertain the appeal.

However, as the very final court available to

the appellants on facts and law, considering the

facts of this case narrated above, we think it

would be just and proper if one year's time is

granted, to the appellants to vacate the subject

property and deliver peaceful possession thereof

to the respondent.

We order accordingly, but on the condition

that the appellants/defendants shall pay on and

from 1st September, 2022 payable by the 7th of

each and every month in advance occupation

charges at the rate of Rs. 500/- per month to the

respondent. The respondent shall not take any

steps for execution of the decree till 31st August,

2023.

On and from 1st September, 2023, the

impugned decree in this appeal shall become

executable.

The execution proceeding taken out by the

appellants/defendants shall remain stayed till

31st August, 2023.

In this period till 31st August, 2023 both the

parties shall maintain status quo regarding

ownership and possession of the suit property

and shall not also otherwise deal with it.

( Subhendu Samanta,J. ) ( I. P. Mukerji,J. )