Smt. Subadra Roy v. The Deputy Commissioner And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/5/2023 IA No:CAN/1/2023 Smt Subadra Roy Vs.

The Deputy Commissioner and others Mr. K. Vijay Kumar ... for the appellant Mr. V.D.Sivabalan Mr. Arun S Kumar ... for the respondents February 21, 2023 [SR] Item No.2 Heard Mr. K. Vijay Kumar, learned counsel for the appellant and Mr. Arun S Kumar led by Mr. V.D.Sivabalan, learned counsel for the respondents including the private respondent.

The order dated 19.12.2022 passed by Hon'ble Single Judge in WP No.852/2022 is impugned in this appeal. Admittedly on the self same issue between the parties, Title Suit No.193 of 2013 is pending. An ex parte decree was passed against the private defendant by the learned Civil Court in the aforesaid suit.

Against such order, the present appellant approached this Court in WP/342/2021. The said writ petition was disposed of vide order dated 20th September, 2021 and the private respondent (the present appellant) and the writ petitioner was advised to file application under Order IX Rule

13 of the C.P.C. Such petition having been filed, it is stated to be pending.

In the meantime, when the Deputy Commissioner, South Andaman District mutated the name of the present private respondent (plaintiff in the suit) in respect of property in question after passing of decree in T.S.No.193 of 2013, the present writ petition was filed.

In view of the narration of facts (supra), this Court under Article 226/227 of the Constitution of India could not have taken cognizance of the matter and the writ petition was not at all maintainable. In spite of such fact, Hon'ble Single Judge went a step forward in good faith and directed not to give effect to the impugned decree i.e. the Order dated 02.08.2022 till the disposal of the petition filed by the present appellant under Order IX Rule 13 of the C.P.C. Aggrieved by such order, the present appeal has been filed.

Taking into consideration the aforesaid facts and submissions, the order passed by Hon'ble Single Judge is set aside and the concerned Civil Court is directed to dispose of the application filed under Order IX Rule 13 of the CPC in accordance with law, within two months hence. Accordingly, the appeal, being MAT/5/2023 is disposed of and the interim application, being CAN/1/2023, is also disposed of.

( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )