Dismissed

On the Death of Krishna Biswas, His Legal Heirs and Anr. v. Keshab Chandra Dey

Gauhati HC21 Nov 2019CRP/530/2012

Case brief

AI extract

What is this about?

The Hon'ble Gauhati High Court dismissed a revision petition challenging the rejection of an application to set aside an ex-parte decree. The court found summons were duly served based on the record, and the lower court correctly held that the petitioners could not claim non-service after entering appearance without proof of fraud.

What did the court decide?

The revision petition is dismissed with directions to return the LCRs. No costs awarded.

On the Death of Krishna Biswas, His Legal Heirs and… — Execution and Attachment | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010122842012

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 530/2012

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1:ON THE DEATH OF KRISHNA BISWAS, HIS LEGAL HEIRS AND ANR R/O- ANANDAPALLY, LUMDING TOWN, P.O., P.S. and MOUZA- LUMDING, DIST.- NAGAON, ASSAM.

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1.1: SMTI. AJANTA BISWAS (WIFE) R/O- ANANDAPALLY LUMDING TOWN P.O. P.S. and MOUZA- LUMDING DIST.- NAGAON ASSAM.

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1.2: SRI NIRMOY BISWAS (SON) R/O- ANANDAPALLY LUMDING TOWN P.O. P.S. and MOUZA- LUMDING DIST.- NAGAON ASSAM. 1.3: SRI SUMIT BISWAS (MINOR SON) REP. BY HIS MOTHER SMT. AJANTA BISWAS R/O- ANANDAPALLY LUMDING TOWN P.O. P.S. and MOUZA- LUMDING DIST.- NAGAON ASSAM.

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2: SHRI SUBHAM BISWAS

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S/O. LT. GANESH BISWAS @ RAM KRISHNA BISWAS R/O. ANANDA PALLY LUMDING TOWN P.O. and P.S. LUMDING-782447 DIST. HOJAI ASSAM

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VERSUS

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1:KESHAB CHANDRA DEY S/O- LT. RAJENDRA NARAYAN DEY, VILL.- JARANGDISHA, P.O., P.S. and MOUZA- LUMDING, DIST.- NAGAON, ASSAM.

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Advocate for the Petitioner : G C PHUKAN

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Advocate for the Respondent : A BHATTACHARJEE

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BEFORE

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THE HON’BLE MR JUSTICE PRASANTA KUMAR DEKA

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For the petitioners : Mr. D. C. Chakraborrty. Advocate. For the respondent : Mr. S. P. Choudhury. Advocate.

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Date of hearing & date of Judgment/ Order : 21.11.2019

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JUDGMENT & ORDER (ORAL)

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Heard Mr. D. C. Chakraborty, the learned counsel for the petitioners as well as Mr. S. P. Choudhury, the learned counsel for the respondent.

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This revision petition arose out of the judgment passed in Misc. Appeal No.19/2009 by the learned court of Civil Judge, Nagaon. The respondent filed Title Suit No. 16/2001 against the present petitioner and another claiming recovery of possession under Section 6 of the Special Relief Act, 1963. The suit proceeded ex-parte and the judgment and decree so passed

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ex-parte was executed. After the execution, the petitioner filed an application under Order IX Rule 13 of the C.P.C. before the trial court of learned Munsiff, Hojai for setting aside the exparte decree. In the said petition, the petitioners pleaded that no summons were served on them. The respondent filed their written objection. The learned court below dismissed the said petition by holding that the petitioners entered appearance in the suit and failed to file the written statement. In addition to that the learned court below came to the finding that as the decree was fully executed in Title Execution Case No. 03/2003, the prayer for setting aside the ex-parte decree could not be allowed. Being aggrieved, the said order of dismissal was challenged in Misc. Appeal No. 19/2009 and the same was also dismissed by judgement dated 27.03.2012. Thereafter, this revision petition was filed which is taken up for its disposal today.

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Mr. Chakraborty, the learned counsel for the petitioners submits that the learned original court dismissed the petition only on the ground that the ex-parte decree was already executed. On the other hand, the learned First Appellate Court considering the plea that summons were not served held that the petitioners failed to prove any fraud/forgery of their signatures in the Vakalatnama in the trial court showing engagement of advocates and their representations for which the appeal was dismissed. It is the contention that as the learned court below failed to consider the fact of non receipt of summons, this interference of the impugned order is required.

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Mr. Choudhury, the learned counsel for the respondent objected to the submissions of Mr. Chakraborty on the ground that record shows that the petitioners entered appearance in the suit and took time for filing written statement. Under such circumstance, the petitioners cannot be permitted to take the plea that no summons were served on them. The petitioners even failed to bring on record any sufficient cause for which they could not appear and file their written statement. Accordingly, this revision petition is liable to be dismissed.

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I have considered the submissions of the learned counsel. The LCRs was called for and on perusal of the same, more specifically, the record of the Title Suit No. 16/2001, I am satisfied that summons were duly served inasmuch as from the order sheets of Title Suit No.

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16/2001, it is apparent that vide order dated 10.01.2001, 07.02.2002 and other prior dates more specifically on 19.09.2001 the petitioners representation before the trial court were recorded. The petitioners took the plea that the signatures on the Vakalatnama were not their signatures. The learned First Appellate Court against the said submissions observed that the petitioners were allowed to adduce evidence and even, thereafter they failed to disprove their signatures on the Vakalatnama. The learned First Appellate Court also took note of the issue raised before it regarding the claim of fraudulent acts played on the trial court. The learned court below also gave finding to that effect that the fraud could not be proved inasmuch as the burden lies upon the petitioners nor the petitioners could obtain any report from Forensic Science Laboratory disputing their signatures on the Vakalatnama.

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On perusal of the LCRs and the impugned judgment, I do not find sufficient ground to interfere nor any failure of jurisdiction on the part of the learned court below. Accordingly this revision petition stands dismissed.

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Send back the LCRs. No costs.

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JUDGE

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Comparing Assistant

On the Death of Krishna Biswas, His Legal Heirs and Anr. v. Keshab Chandra Dey

Case brief

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On the Death of Krishna Biswas, His Legal Heirs and Anr. v. Keshab Chandra Dey

Case brief

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What did the court decide?

What the court decided

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