Shri Dipak Kumar Sahoo vs Sri Deb Dulal Pradhan & Anr
2023 Latest Caselaw 774 Cal

30.01.2023
 Sl.No. 15
 Ct.No.3
 Amalranjan
               IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                       APPELLATE SIDE

                        FMA 673 of 2020
                              With
              CAN 1 of 2019 (Old CAN 11809 of 2019)

                    Shri Dipak Kumar Sahoo
                               VS
                  Sri Deb Dulal Pradhan & Anr.

                 Mr. Mrinal Kanti ghosh
                                    ...for the defendant/appellant

                 Mr. Indranil Nandi
                 Mr. Deba Prosad Samanta
                 Mr. Sayak Konar
                                             ...for the respondents

Re: CAN 1 of 2019 (Old CAN 11809 of 2019)

We formally admit the appeal.

We have substantially heard learned

counsel for the parties.

Having done so we are in a position to

dispose of this appeal, dispensing with all

formalities.

The impugned judgment and order of the

learned court below dismisses the application of

the appellant/defendant under Order 9 Rule 13

of the Code of Civil Procedure to set aside an

ex parte decree against him. The delay was of

about 57 days.

In considering this appeal, certain facts are

to be borne in mind.

The suit is of 2005 for specific performance

of an agreement for sale of an immovable

property in Purba Medinipur.

The appellant/defendant took as many as

38 adjournments before the suit was decreed

ex parte in 2014. Thereafter, the said

application to set aside this decree was filed after

57 days and dismissed on 8th August, 2019.

Thus, the lis was pending for 15 years.

Considering the above facts and for the ends

of justice, we think that the Order 9 Rule 13

application should be heard out on merits. We

dispose of this appeal and the connected

application by setting aside the impugned

judgment and order dated 8th August, 2019 with

a direction upon the learned court below to hear

out the application under Order 9 Rule 13 of the

Code of Civil Procedure within 8 weeks of

communication of this order.

This order is conditional upon the

appellant/defendant paying costs assessed as

Rs. 5,000/- to the advocate on record for the

respondents in this court, by 6th February, 2023.

In default of payment of costs by the

aforesaid date, the matter may be brought to the

notice of the learned court below, which shall

thereupon treat its impugned judgment and

order dated 8th August, 2019 as final and

binding upon the parties and dismiss the Order

9 Rule 13 application.

The appeal and the connected application

are disposed of.

( Biswaroop Chowdhury,J. ) ( I. P. Mukerji,J. )