Sri Amal Kumar Basu & Ors vs Kenaram Dutta & Ors
2022 Latest Caselaw 3966 Cal

   10
 sandip
 Ct. 18
05.07.2022

C.O. No. 3081 of 2019 Sri Amal Kumar Basu & Ors.

Vs.

Kenaram Dutta & Ors.

Mr. Mahendra Prasad Gupta, Mr. Abhishek Banerjee, Mr. Ayan Mitra, Mr. Chandan Mondal, Ms. Antara Panja, Ms. Supriya Mahajan .,. For the petitioners.

Mr. Anirban Mitra, Mr. Amit Haldar, Md. Wasim Akram ... For the O.P. Nos. 2 to 5.

The instant application under Article 227 of the

Constitution of India is at the instance of the

plaintiffs/decree-holders in a suit for partition being Title

Suit No. 40 of 2002.

The said suit was decreed ex parte in preliminary form

on April 24, 2006.

The application filed by the opposite parties under Order

IX Rule 13 of the Code of Civil Procedure for setting aside

the said ex-parte decree was dismissed and the said order

of dismissal was affirmed in C.O. 3094 of 2008.

The said preliminary decree was made final on February

11, 2009 on contest. The appeal against the said final

decree was affirmed in second appeal being S.A. 254 of

2016.

The final decree when was put into execution gave rise

to Title Execution Case No. 02 of 2016 before the learned

Civil Judge, (Senior Division) at Basirhat, District - 24

Parganas (North).

The opposite parties in the said execution case filed an

application under Section 47 of the Code being

Miscellaneous Case No. 40 of 2018.

The Executing Court by the order impugned dated

August 13, 2019 has allowed the said misc. with the

following orders:-

"Hence, it is, Ordered:

**That the petition u/s 47 CPC is Allowed on Contest;

~ on cost Rs. 5000/- [Five thousand] to the OP; ~ with condition to proceed in Original Suit on weekly basis;

~ with a rider that defaulting side is liable for cost of Rs 500/- on each default date."

The execution and satisfaction of the final decree was

questioned, inter alia, on the grounds that the said decree

was obtained by practicing fraud, no summons of the

preliminary decree was served upon the judgment debtors,

the description of the suit schedule property is incorrect

and the decree was passed against minors.

None of the said grounds of challenge except the

ground that the said preliminary decree was passed against

the minors are sustainable in an objection under Section

47 of the Code.

Objection to the execution, discharge and satisfaction of

the final decree of partition is not available to the opposite

party nos. 3 and 4 on the ground of their minority since the

said opposite parties participated in the proceeding for

setting aside the ex-parte preliminary decree, represented

by their natural guardian, father and also challenged the

final decree of partition as such without any challenge to

the legality and/or validity of their such representation in

those proceedings.

The learned Trial Judge has therefore acted with

material irregularity in allowing the said objection,

in consequence the order impugned is set aside.

The application under Section 47 of the Code filed by

opposite parties is dismissed. C.O. 3081 of 2019 is allowed

without any order as to costs.

It is made clear that this order will not prevent the

opposite parties to take appropriate steps for allotment of

their shares in accordance with law.

The executing Court is requested to proceed with the

execution case expeditiously.

The Lower Court Records be sent down to the Court

below immediately by Special Messenger at the costs of the

petitioners to be put in within two weeks from date.

Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties subject to compliance with

all requisite formalities.

(Biswajit Basu, J.)