Calcutta High Court (Appellete Side)
Sourav Dutta vs Sri Sravan Shaw & Ors on 16 April, 2025
Author: Biswajit Basu
Bench: Biswajit Basu
S/L 2 16.04.2025
Court No.17
SD
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
CO 4437 of 2024
[Assigned]
Sourav Dutta
Vs.
Sri Sravan Shaw & Ors.
Mr. Sounak Bhattacharyya
Mr. Sounak Mondal
Mr. Anirban Saha Ray
Mr. Abhirup Haldar … for the Petitioner.
The defendant in a suit for eviction of trespassers
is the petitioner of the instant application under Article
227 of the Constitution of India which is directed against
the Order No.191 dated November 7, 2024 passed by the
2nd Court of learned Civil Judge (Junior Division), Alipore,
District: 24-Parganas (South) in Miscellaneous Case No.10
of 2020.
The decree of eviction dated September 23, 2011
passed in Title Suit No.888 of 2008 which was affirmed in
second appeal, was put into execution, giving rise to
Execution Case No.02 of 2012.
In the said execution case, the petitioner had filed
an application under Section 47 of the Code of Civil
Procedure registered as Misc. Case No.26 of 2016. The
said misc. case was dismissed for default on January 17,
2018.
The petitioner, for restoration of the said misc.
case, took out an application. The Executing Court by the
order dated August 30, 2018 had allowed the said
application with costs of Rs.1,000/-, however, on the
failure of the petitioner to pay the said costs, by the order
dated January 10, 2020, the Executing Court had recalled
the said order dated August 30, 2018, consequently had
dismissed the said Misc. case No.26 of 2016.
The petitioner thereafter had filed an application
under Order IX Rule 4 of the Code of Civil Procedure for
restoration of the said Misc. Case. The said application
was registered as Misc. Case No.10 of 2020.
2
The Executing Court by the order impugned has
dismissed the said application holding, inter alia, that
there is nothing on record to suggest that the petitioner
had ever made any endeavour to pay the said costs.
The order dated August 30, 2018 dismissing the
Misc. case No.26 of 2016 has attained finality; as such the
subsequent application under Order IX Rule 4 of the Code
of Civil Procedure for restoration of the said Misc. case by
recalling the order dated January 17, 2018 is not
maintainable, besides, the petitioner, has failed to produce
any evidence to demonstrate that he had ever attempted to
comply with the condition of payment of costs for recalling
of the order dated January 17, 2018, the order impugned,
therefore, does not call for any interference.
CO 4437 of 2024 is dismissed without any order
as to costs.
Parties to act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent Photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance
with all requisite formalities.
(Biswajit Basu, J.)
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