Fazal Karim vs Rahima Khatoon and Others

Prasenjit Mandal, J.—This application is at the instance of the judgment debtor and is directed against the Order No. 28 dated August 12, 2010 passed by the learned Judge, Small Causes Court, Calcutta, 5th Bench in Misc. Case No. 328 of 2006 arising out of Ejectment Case No. 109 of 2006.

The short fact necessary for the purpose of disposal of this application is that the Plaintiffs/opposite parties herein obtained a decree of recovery of possession ex parte in respect of the premises as mentioned in the application for execution. That decree was put to execution in the year 2006 and the execution of the decree was resisted. The decree-holders filed a misc. case being Misc. Case No. 328 of 2006 for rendering police help. At that time, the judgment debtor appeared and filed an application under Order 9 Rule 13 of the CPC and the said application was converted into the Misc. Case No. 96 of 2007.

Upon hearing both the sides, the learned Trial Judge passed the orders dated September 8, 2009 directing that the ex parte decree would be set aside on deposit cost of Rs. 5,000/- by October 22, 2009. But the judgment debtor did not deposit the said cost by October 22, 2009. Long time thereafter, on May 12, 2010, the judgment debtor filed an application u/s 151 of the CPC praying for permission to deposit the said amount on the ground stated therein. That application was heard on July 29, 2010 and the learned Executing Court directed that the application u/s 151 of the CPC would be considered, provided the identity of the Defendant, namely, Fazal Karim was established and accordingly directed the Defendant to appear on the next date, that is, on August 12, 2010. But August 12, 2010 none was present on behalf of the Defendant, Fazal Karim. Accordingly, the application was rejected on August 12, 2010. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing both the sides and on perusal of the materials on record, I find that the Petitioner has adopted dilatory tactics to frustrate the execution of the decree and that the learned Trial Judge has rightly rejected the application u/s 151 of the CPC The application for execution of the decree for recovery of possession was filed in the year 2006. The writ of delivery of possession was issued accordingly and the execution of the decree was resisted. Thereafter, the decree-holders filed the misc. case being Misc. Case No. 308 of 2006 for execution of the decree with police help. The application under Order 9 Rule 13 of the CPC was filed in 2007 and in the said misc. case, the Petitioners were directed to deposit or pay Rs. 5,000/- as costs and that on payment of the costs, the ex parte decree would be vacated. The Petitioner did not make payment within the stipulated date i.e. by October 22, 2009. After about 7 months from the date of disposal, the application u/s 151 of the CPC was filed. The decree-holders doubted the genuineness of the said application on the plea that it was not filed by the judgment debtor, but by some other person and that is why the learned Trial Judge directed the Petitioner to appear along with his identity card for verification. The learned Trial Judge was within his right to pass such an order, whenever the doubt is expressed by the decree-holders relating to the filing of the said application. Accordingly, the learned Trial Judge directed the Petitioner to appear in person and that the application u/s 151 would be considered upon his appearance. I do not find any illegality in the impugned order under the circumstances.

The judgment debtor did not appear. It is the contention of the Petitioner that the judgment debtor resides in Kabul, Afghanistan and that he is 85 years age. The doctor has given certificate to the effect that the judgment debtor is not in a position to travel at this moment. Apparently, the judgment debtor did not appear on health ground supported by a medical certificate. But in consideration of the doubt expressed by the learned Trial Judge on the pre-text of the decree-holder that the judgment debtor did not file the said application, I hold that the order is justified.

It may be pointed out herein that from the impugned order it is evident that neither the judgment debtor nor his constituted attorney, namely, Nurulla Jahn who filed the application u/s 151 of the Code of Civil Procedure, appeared. The judgment debtor may not appear on the health ground but his constituted attorney along with the original power of attorney should have appeared before the learned Trial Judge on the relevant date i.e. on August 12, 2002. Since, none appeared on that day, the learned Trial Judge was justified in rejecting the application u/s 151 of the CPC I do not find any illegality in the impugned order.

From the above facts, it is clear that the judgment debtor has taken dilatory tactics to prolong the execution proceeding, so that the decree of recovery of possession may be frustrated. That is why the constituted attorney even did not appear on the date of hearing of his application on August 12, 2010. So, no misplaced sympathy should be awarded to the judgment debtor. The application is, therefore, devoid of merits.

It is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.