Nilima Bhattacharjee vs Sisir Ranjan De and Others

Abdul Ghani, J

The present revisional application Under Article 227 of the Constitution of India is directed against the order dated 20th January, 2007, passed by the learned Civil Judge (Junior Division), Barrackpore, North 24-Parganas, in connection with Title Execution Case No. 5 of 2006, which was filed for execution of the decree dated 23rd December, 1960 passed in Title Suit No. 161 of 1958.

From the materials on record it could be gathered that the learned Civil Judge (Junior Division), Barrackpore while passing the impugned order issued direction upon the present Petitioner to file some documents relating to original decree passed in Title Suit No. 161 of 1958 as also some other connected documents concerning the second appeal decided by the Hon''ble Division Bench of this Court and was pleased to stay the T. Exe. Case No. 5 of 2006/T. Exe. 73 of 1970.

Being aggrieved by and dissatisfied with the impugned order dated 20th January, 2007, the present Petitioner has come up before this Court praying for setting aside the said order and for obtaining the appropriate redress.

Mr. Amit Kumar Bhattacharyya, learned Counsel appearing for the Petitioner having drawn this Court''s attention to the contents of the revisional application Under Article 227 of the Constitution of India as also some other important materials on record including the impugned order dated 20th January, 2007 emphatically argued and submitted that his client has been facing tremendous harassment for no fault of her own inasmuch as despite effective steps regarding service of notice upon Opposite Parties taken on the part of his client as per direction of the Hon''ble Court, the Opposite Parties concerned on various pretexts did not turn up before this Court to resist the revisional application as a result, the said application could not be disposed of. He further referring to the envelopes containing the notice strongly urged that due to non-appearance of the Opposite Parties, the matter could not be heard and decided. In support of his contention, he has relied upon the decision reported in M/s. Madan and Co. Vs. Wazir Jaivir Chand, and emphatically urged that it is a fit case wherein the Court should proceed with the matter for disposal treating the service of notice upon the Opposite Parties as lawful and acceptable.

On scrutiny of the record it could be ascertained that despite proper service of notice upon the Opposite Parties, they have not turned up before this Court to resist the revisional application. In this context, it may be pertinent to point out that pursuant to this Court''s orders and directions, the Petitioner took effective steps for service of notice upon the Opposite Parties by Registered Post with A.D. as also through special messenger. The postal envelope received back by the Court contains the remarks ''not known'', while the envelope received from the end of the special messenger of the court speaks that the notice could not be served upon the Opposite Parties due to their ''non-availability'' at the relevant place. In view of the aforementioned decision relied upon on behalf of the Petitioner the remarks ''not found'' may be treated as a proper service of notice when the notice was correctly addressed. Since in view of the principles laid down in the ruling relied upon and/or referred to on behalf of the Petitioner, the report ''not found'' may be accepted as good service, in the same way, non-service of notice upon the correctly addressed Opposite Parties due to their ''non-availability'' at the relevant place deserves to be treated as proper service of notice as the words ''not found'' and ''not available'' are synonymous and accordingly this Court finding no alternative decides to proceed with the matter for an effective adjudication of the revisional application basing upon the report of the special messenger of this Court.

In this context, it may be brought into discussion that original Title Suit No. 161 of 1958 was instituted by one Jyotirmoyee Roy Chowdhury who died during pendency of the second appeal No. 91 of 1964 and on her death, her legal heirs namely Santimoy Roy Chowdhury and four others were accordingly added as substitutes in her place vide order dated 13th September, 1965. Thereafter during pendency of the said second appeal, present Petitioner purchased the tenanted property from aforesaid Santimoy Roy Chowdhury and four others and thus she was added to the said second appeal as a Respondent.

It would be explicit from the materials on record that the Title Suit No. 161 of 1958 was decreed on 23rd December, 1960 with cost against the present Opposite Parties, (being the Defendant of the said suit) as ex parte and against the said decree, Defendant No. 1 being the present Opposite Party No. 1 namely Sisir Ranjan De preferred first appeal being Title Appeal No. 201 of 1961, which was dismissed with cost on 28th November, 1962 by the learned Subordinate Judge , 9th Court at Alipore, 24-Parganas. Against the said judgment dated 28th November, 1962, the aforesaid Defendant Sisir Ranjan De preferred second appeal being S.A. No. 91 of 1964 before the Hon''ble High Court at Calcutta. The said second appeal was disposed of by Hon''ble Division Bench of this Court on 6th October, 2005 with an observation that all the pending applications in connection with the second appeal would be dismissed and all interim orders made in the above appeal would be vacated. Thereafter, the present Petitioner filed the Execution Case No. 5/2006, which was earlier numbered as Title Execution 73/70. Unfortunately, in the said execution case the learned Trial Court while passing the impugned order failed to understand the chronological history of the case and improperly directed the present Petitioner to file relevant documents and was pleased to pass an Order of Stay of the Execution Case in question.

In my considered view, the order passed by the learned Court below is not sustainable in the eye and estimation of law inasmuch as the documents placed before the Trial Court were sufficient to make anyone understand that the same were related to the Title Suit No. 161 of 1958, ended in second appeal No. 91 of 1964. Accordingly, I set aside the impugned order dated 20th January, 2007 and direct the learned Trial Court to proceed with the Execution Case No. T. Exe.5 of 2006/T. Exe.73 of 1970 according to law and to dispose of the same at an earliest opportunity preferably within a period of six months from the date of communication of this order. In the result, the revisional application stands allowed.

I, however, make no order as to costs.

Urgent Photostat certified copy of this judgment be handed over to the parties expeditiously, if applied for.