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Judgment
Hiranmay Bhattacharyya, J.:-
Re: C.O. No. 4267 of 2025
This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order dated 30.06.2025 passed by the learned District Judge, Purba Medinipur at Tamluk in Misc. Appeal no. 32 of 2024 affirming the order being no. 96 dated 26.04.2024 passed by the learned Civil Judge, Junior Division, First Court, Tamluk in J. Misc. Case no. 37 of 2019.
The opposite party no. 1 filed Title Suit no. 35 of 2012 against Pakuria ICDS center represented by Mrinalini Jana for declaration of title, recovery of possession and permanent injunction. The said suit was decreed ex parte on 12.04.2017. Petitioner filed Misc. Case no. 37 of 2019 on 30.07.2019 praying for setting aside the ex parte decree dated 12.04.2017 along with an application under Section 5 of the Limitation Act.
Misc. Case no. 37 of 2019 along with the application under Section 5 of the Limitation Act stood dismissed by a judgment and order dated 26.04.2024.
Being aggrieved by the said order, petitioner preferred a Misc. Appeal being no. 1 of 2025. The Misc. Appeal stood dismissed by a judgment and order dated 30.06.2025 passed by the learned Civil Judge, Senior Division, First Court at Tamluk, District Purba Medinipur.
The case made out by the petitioner in the application under Order 9 Rule 13 of the Code of Civil Procedure is that the summons of the suit was not received by Mrinalini Jana. The said Mrinalini Jana passed away on May 17, 2018 at her residence after a prolonged illness due to cancer. The petitioner first became aware of the ex parte decree passed in Title Suit no. 35 of 2012 on 08.07.2019 when the court bailiff visited the suit property for delivery of possession. The petitioner assumed additional charge of the Pakuria ICDS center on 18.05.2018. Immediately upon learning that the ex parte order was passed, petitioner visited the Court on 19.07.2019 and consulted with her advocate and thereafter filed the Misc. Case. Since there was a delay of about 808 days in filing the Misc. Case, an application under Section 5 of the Limitation Act was also filed.
The Misc. Case was contested by the opposite party no. 1 by filing a written objection denying the material allegations contained therein.
Upon a contested hearing, the Misc. Case stood dismissed and the appeal filed by the petitioner against the order dismissing the Misc. Case also stood dismissed.
Mr. Roy, learned advocate appearing for the petitioner submitted that the learned Trial Judge as well as the learned Judge of the Appellate Court failed to appreciate that the summons of the suit was not served upon the said Mrinalini Jana. He further submitted that the ex parte decree was obtained by practicing fraud. He submitted that the learned judges of the trial court as well as the appellate court failed to appreciate that the ex parte decree was passed without following the procedures laid down under Order 5 Rule 17, 19 and 20 of the Code of Civil Procedure. The learned advocate for the petitioner placed reliance upon the decisions of the Hon’ble Supreme Court in the case of T. Vijendradas v. M. Subramanian, reported at (2007) 8 SCC 751 and Parimal v. Veena, reported at (2011) 3 SCC 545 in support of his contention that a decree obtained by practicing fraud should be set aside.
Mrs. Chakraborty learned advocate for the opposite party seriously disputed the submission of the learned advocate for the petitioner. She submitted that the summons was duly served upon Mrinalini Jana who was in-charge of the ICDS Centre at the relevant point of time. She submitted that the defendants inspite of being served with the summons of the suit did not enter appearance in the suit. She submitted that the learned trial judge had no other alternative but to proceed with the hearing of the suit ex parte followed by an ex parte decree. She further submitted that the learned trial judge as well as the learned judge of the appellate court after considering the materials available on record arrived at a factual finding that the petitioner failed to satisfy that they were prevented by sufficient cause for not attending the Court when the matter was scheduled for hearing. She thus concluded by submitting that the concurrent findings of fact should not be interfered with by this Court under Article 227 of the Constitution of India.
Heard the learned advocates for the parties and perused the materials placed.
Order 9 Rule 13 of the Code of Civil Procedure, lays down that an ex parte decree has to be set aside if the defendant satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the Court shall not set aside the said decree merely on the ground that there has been an irregularity in the service of summons or in a case where the defendant had notice of the date of hearing and had sufficient time to appear in the Court and answer the plaintiff’s claim.
In Parimal (supra), the Hon’ble Supreme Court held that in order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. The Hon’ble Supreme Court further observed that the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion judiciously and there cannot be a straitjacket formula of universal application.
The learned Trial Judge after noticing the case made out by the petitioner and the opposite party, considered the evidences adduced by the respective parties. The learned Trial Judge noted the contention of the petitioner that the plaintiff/opposite party had collusively manufactured the A/D Card. The learned Trial Judge was right in drawing an adverse inference against the petitioner for not adducing any evidence of anyone from the postal department in order to prove that the A/D available in the case record is a manufactured document. The learned Trial Judge held that the petitioner could not satisfy the Court that she was prevented by sufficient cause from preferring the application within the period of limitation. The learned Trial Judge held that the petitioner failed to prove that the summons was not delivered at ICDS Center.
Record reveals that the suit was instituted on 16.02.2012 and on that date an ad interim injunction was granted in favour of the plaintiff and a local inspection under Order 39 Rule 7 of the Code of Civil Procedure was permitted. Inspection was held on 04.03.2012 and the learned Advocate Commissioner submitted the report on 16.03.2012.
The learned Judge of the appellate court upon perusing the records held that by order no. 6 dated 19.03.2012 the AD Card addressed to the defendant no. 2 (BDO Kolaghat) returned as served and as the defendant no. 2 failed to appear, an order for ex parte hearing against the said defendant was passed.
The learned Judge of the appellate court noted that Order no. 10 dated 16.07.2012 indicates that the AD Card was correctly addressed to the defendant no. 1 ICDS center represented by Mrinalini Jana and the same was received as served.
The learned Judge of the appellate court further recorded that in so far as the defendant nos. 3 to 8 and 12, ordinary service having proved to be unsuccessful, the learned trial judge thereafter directed substituted service via paper publication and despite such service, the defendants failed to appear and the suit proceeded ex parte against those defendants by order dated 21.07.2014.
Since the defendants did not appear, the suit was set for ex parte hearing from 08.09.2014. Plaintiff adduced evidence and after hearing ex parte argument the learned trial judge passed an ex parte decree on 12.04.2017.
In the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure the petitioner made out a case that since Mrinalini Jana was suffering from cancer at the relevant point of time and was not attending her official duties at the relevant point of time, the ex parte decree should be set aside.
The learned judge of the appellate court recorded a factual finding that the petitioner failed to produce any document to substantiate Mrinalini Jana’s illness or its severity to the extent that it would prevent her from performing her official duties at the relevant point of time. An adverse inference was drawn against the petitioner for non-production of any document regarding the illness or treatment of Mrinalini Jana or the Attendance Registrar of the ICDS Centre to substantiate the long term absence of the said Mrinalini Jana from work due to her illness.
The PW1 in her evidence admitted that Mrinalini Jana continued to work at Pakuria ICDS Centre until 16.05.2018 i.e., just a day before her death.
In the light of the aforesaid evidences, both oral and documentary, the learned Judge of the appellate court recorded a factual finding that the available evidence do not support the case of the petitioner that they were prevented by sufficient cause due to illness of Mrinalini Jana from attending the Court when the matter was scheduled for hearing.
The learned Judge of the appellate Court also took note of the fact that Mrinalini Jana had knowledge of the original title suit as she was present during the inspection of the suit property by the Advocate Commissioner. The report of the learned Advocate Commissioner dated 16.03.2012 recorded the presence of Mrinalini Jana during inspection and her signature also appears at the field note dated 04.03.2012 as the representative of the defendant ICDS center.
The learned Judge of the appellate court after noting such fact observed that Mrinalini Jana intentionally remained absent at the time of hearing of the suit leading to the ex parte decree. The learned Judge of the appellate Court held that the petitioner could not provide satisfactory explanation for the substantial delay of 808 days in approaching the trial court for setting aside the ex parte decree.
Procedure under Order 5 Rule 17 applies when the defendant refuses to accept service or cannot be found. Order 5 Rule 19 comes into play where a summons is returned under Order 5 Rule 17. Order 5 Rule 20 deals with substituted service in a case where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of a viding service, or that for any other reason the summons cannot be served in ordinary way.
The summons addressed to the defendant no. 1 was served. Thus, the provisions of Order 5 Rules 17, 19 and 20 do not have any manner of application when the summons have been duly served.
The learned trial judge after considering the materials on record held that the petitioner failed to prove her contentions by cogent evidences. The learned Judge of the appellate court considered the evidences of the respective parties both oral and documentary in details and dismissed the Misc. Appeal by passing a reasoned order. The learned advocate appearing for the petitioner could not controvert the factual finding arrived at by the learned Trial Judge and the Appellate Court in course of his argument.
It is well settled that concurrent findings of fact cannot be interfered with under Article 227 of the Constitution of India unless there is perversity. The impugned orders do not suffer from any perversity warranting interference under Article 227 of the Constitution of India.
Mr. Roy would contend that an adverse inference ought to have been drawn against the opposite parties for non-production of the contents of the registered envelop. He thus, contended that decree obtained by fraud is nullity and non est in the eye of law.
In T. Vijendradas (supra), the purported notice was deliberately sent to a wrong address which was held to be an act of fraud. In such a factual matrix, an adverse inference was drawn for non-production of the contents of the notice.
The said decision is distinguishable on facts as in the case on hand the A/D Card indicates that summons were received by the defendant no. 1.
CO No. 4267 of 2025 accordingly stands dismissed. There shall be, however, no order as to costs.
Urgent photostat certified copy of this judgment be supplied to the parties, if applied for, after compliance of all the formalities.
Re: C.O. 2575 of 2026
This application is at the instance of a Judgment Debtor and is directed against an order being no. 88 dated 15.07.2026 passed by the learned Civil Judge (Jr. Division), 1st Court at Tamluk in Title Execution Case No. 19 of 2018.
By the order impugned, Nazir or any authorised seal bailiff was directed to execute the decree with police help.
Opposite party no. 1 filed a suit being Title Suit no. 35 of 2012 for declaration of title, recovery of possession and permanent injunction. The said suit was decreed ex parte vide Judgment and Decree dated 12.04.2017 thereby declaring that the opposite party no. 1 has right, title and interest in respect of Ka schedule property and the petitioner was directed to deliver peaceful possession of “Ka/1” schedule property to the opposite party no. 1. The said decree was put into execution giving rise to Title Execution Case no. 19 of 2018.
Petitioner filed an application under Order 9 Rule 13 of the Code being Misc. Case no. 37 of 2019. Since the Misc. Case was filed beyond the statutory period of limitation, the said Misc Case was accompanied by an application under Section 5 of the Limitation Act for condonation of delay. The said Misc. Case along with the application under Section 5 of the Limitation Act was dismissed by an order dated 26.04.2024.
Challenging the said order dated 26.04.2024 a Miscellaneous Appeal being Misc. Appeal No. 01 of 2025 was filed which stood dismissed by a Judgment and order dated June 30, 2025.
Being aggrieved, petitioner filed C.O. 4267 of 2025 challenging the order dated June 20, 2025 passed in Misc. Appeal.
During pendency of C.O. 4267 of 2025, the learned Judge of the Executing Court passed the impugned order.
Mr. Roy, learned advocate for the petitioner contended that an adjournment was prayed for on the ground of pendency of C.O. 4267 of 2025 and the learned Judge rejected such prayer. He contended that the learned Judge of the Executing Court ought not to have directed execution of the ex parte decree with police help.
Mrs. Chakraborty, learned Advocate for the opposite party submitted that mere pendency of a Civil Revision application does not operate as a stay of the execution proceeding.
Heard the learned advocates for the parties and perused the materials placed.
It is well settled that mere pendency of a Civil Revision application does not operate as a stay of the Execution Case.
The learned Judge of the Executing Court after noting the directions passed by the Hon’ble Supreme Court in 2025 INSC 329 to dispose of the execution cases within six months, rejected the prayer for adjournment. The learned Judge of the Executing Court was right in holding that in the absence of any order of stay, there is no impediment in continuing with the execution of the decree.
That apart C.O. No. 4267 of 2025 has been dismissed by an order passed today ( 28.08.2026).
To the mind of this Court, the learned Judge of the Executing Court was right in directing the seal bailiff to execute the decree with police help.
The impugned order does not suffer from any infirmity.
C.O. 2575 of 2026 stands dismissed without, however any order as to costs.
Urgent photostat certified copy of this judgment be supplied to the parties, if applied for, after compliance of all the formalities.