Vinar Limited vs Nirmala Bala Gain

Bhaskar Bhattacharya, J.—This revisional application u/s 115 of the CPC is at the instance of a judgment-debtor in an execution proceeding for eviction and is directed against Order No. 49 dated July 17, 1998 passed by the learned Civil Judge, 1st Court, Junior Division, Sealdah in Misc. Case No. 103A of 1996 thereby rejecting an application u/s 47 of the CPC filed by the present Petitioner.

There is no dispute that the opposite party/decree holder filed a suit for eviction of the present Petitioner on the allegation that the Petitioner was tenant under her and that the Petitioner was a defaulter in payment of rent.

The said suit was decreed ex parte although the Petitioner initially entered appearance and filed an application u/s 17(2A) of the West Bengal Premises Tenancy Act (''Act'').

There is no dispute that the Petitioner filed an application under Order 9 Rule 13 of the CPC but the same was dismissed and an appeal preferred against such order of dismissal was also dismissed.

The said ex parfe decree having been put into execution, the present Petitioner filed an application u/s 47 of the CPC thereby giving rise to the aforesaid Misc. Case No. 103A of 1996.

In the said application the present Petitioner contended that the decree passed by the learned trial Judge was a nullity as no ground mentioned in Section 13(1) of the Act was reflected in the body of the judgment.

By the order impugned the learned Executing Court rejected such application.

Being dissatisfied, the tenant has come up in revision before this Court.

Mr. Dutt, the learned advocate appearing on behalf of the Petitioner has relied upon a Division Bench decision of this Court in the case of Sitaram Srigopal Vs. Union Carbide India Ltd., and has contended that under the aforesaid circumstances the decree must be held to be a nullity. Mr. Dutt has further relied upon another decision of this Court in the case of Nandini Bala v. Bibhuti Bhusan 1987 (1) C.L.J. 57.

Mr. Roychowdhury, the learned senior advocate appearing on behalf of the opposite party/landlord has on the other hand supported the order of the learned executing Court and has contended that in the suit before the learned trial Judge out of which the concerned execution case arises the Petitioner filed an application u/s 17(2A) of the Act thereby admitting that the Petitioner was a defaulter in payment of rent. Mr. Roychowdhury further contends that the learned executing Court has taken note of the evidence of the son of the Plaintiff wherefrom it will appear that he has specifically asserted that the Petitioner was a defaulter in payment of rent in April 1981 as alleged in the plaint.

Mr. Roychowdhury accordingly contends that even though the ground mentioned in Section 13(1) of the Act is not actually reflected in the ex parte order of eviction, the said order cannot be treated to be a nullity and as such the Petitioner cannot dispute the correctness of the same in a proceeding u/s 47 of the Code of Civil Procedure.

The law relating to the aforesaid point is now well settled. In the case of Biswa Bhusan Bose and Anr. v. Kusum Agarwalla 85 C.W.N. 120 it was held by a Division Bench of this Court that no positive and affirmative finding that there existed a ground of eviction is necessary before passing a decree for eviction. According to the said Division Bench what is required is that the Court must satisfy about the existence of the ground. Satisfaction of Court need not be manifested by positive judicial finding. It there are materials on record to justify an inference that the Court applied its mind it confers jurisdiction on Court to pass a decree.

The aforesaid decision was passed by the Division bench after taking into consideration various Supreme Court decisions and the Division Bench decision in the case of Sitaram Srigopal (Supra) relied upon by Mr. Dutt was held to be no longer good law in view of subsequent decision of the Apex Court. For the same reason the decision of a learned Single Judge in Nandini Bala v. Bibhuti Bhusan (Supra) taking same view cannot be accepted.

Thus, if the actual existence of ground referred to in Section 13(1) of the Act is not reflected in the order of eviction, an executing Court is entitled to scrutinise the record of the trial Court for the purpose ascertaining whether there existed materials in support of such ground. If there exists any material in support of the ground, the learned executing Court cannot go beyond the-order. In the instant case as mentioned earlier, P.W. 1, the son of the opposite party specifically asserted that the Petitioner was a defaulter in payment of rent from April, 1981. Similarly in the application u/s 17(2A) of the Act, there was specific admission on the part of the tenant that it was a defaulter in payment of rent as alleged in the plaint.

Thus, there being sufficient materials available on record, justifying passing of a decree on the ground of default, merely because there is no specific finding in the order of eviction, in my opinion, the learned executing Court rightly refused to declare the same as a nullity.

Thus, I find no merit in the instant revisional application and the same is dismissed.

In the facts and circumstances of the case there will be, however, no order as to costs.