Calcutta High Court (Appellete Side)
Miss Rudrani De And Another vs Sri Kishan Kumar Kedia And Others on 4 October, 2023
October 4, 2023
Sl. No.33
Court No.19
s.biswas
CO 1571 of 2023
Miss Rudrani De and another
vs.
Sri Kishan Kumar Kedia and others
Mr. Tapash K. Bhattacharya
Mr. Aviroop Bhattacharya
... for the petitioners
This revisional application arises out of an order
dated January 21, 2023 passed in Misc. Case No.29
of 2014, arising out of Title Execution Case No.25 of
2010. The learned Civil Judge (Senior Division),
Barasat, North 24 Parganas rejected the misc. case.
The said misc. case was an application under
Section 47 of the Code of Civil Procedure. According
to the petitioners/judgment debtors, the decree
could not be executed, satisfied and discharged as
the same was passed against a dead man.
The next point taken in the application was that
the plaintiff did not have any right, title and interest
in the decreetal property. There were procedural
defects. As the defendant no.2 was dead, direction
upon the defendant no.2 to pay the amount of
Rs.12,80,000/- was illegal and the decree was a
nullity. There were no findings by the learned court
as to why the suit was decreed against the proforma
defendants. Compensation could not be awarded in
the absence of any claim. The lease deed was not
suficiently stamped and the exhibit 3 series, i.e., the
acceptance of the money by the defendant no.2 could
not be proved. That the plaintiff could not prove his
own case but relied on the weakness in the defence
case.
The learned court below dealt with each and
every point taken by the petitioner and found that
the mistake in the decree with regard to the order
against the defendant No.2 (deceased) was corrected
by invoking power under Section 152 of the Code of
Civil Procedure. A substitution application had been
filed well within time for substitution of the heirs of
the defendant no.2. The defendant no.2 was duly
represented by his children and widow, i.e., the
defendant nos.4, 5 and 6. The substitution of the
deceased defendant no.2 was well within the
knowledge of the petitioners. The heirs of the
deceased were already on record and the omission or
slip in the decree was corrected by the court which
passed the decree.
In my opinion, the process adopted by the trial
court was correct and the decree was subsequently
corrected by rectifying the accidental slip/omission.
Such correction would not render the decree as a
nullity for the purpose of disposal of the application
under Section 47 of the Code of Civil Procedure.
It further appears that the other contentions of
the petitioners were with regard to the merits of the
judgment and decree. In my opinion, the executing
court cannot travel beyond the decree and act as an
appellate court.
The petitioners submit that an appeal is
pending being FA 133 of 2018. The merits of the
judgment and decree shall be decided in the said
appeal, but from the order impugned, it does not
appear that the learned court below had acted
illegally and with material irregularity in holding that
the petitioners could not widen the scope of
execution proceedings by challenging the merits of
the judgment and decree.
Mr. Bhattacharya further submits that the
learned court could not have fixed the hearing of
application for calculation of interest as the learned
trial court had specifically held that the interest part
will be calculated in a separate proceeding. This
court is of the view that Mr. Bhattacharya can make
appropriate submissions in this regard in
accordance with law before the learned court below.
The revisional application is thus disposed of.
All the parties are directed to act on the basis of
the server copy of the order.
Urgent Photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Shampa Sarkar, J.)
