Point of Law: Preemption Decree - In order to avail a right of preemption, a weak right the opposite parties are required to deposit the entire consideration money mentioned in the purchase deed of the transferee/petitioner along with 10% of that amount in the Court at the time of filling the application under Section 8 of the Act, 1955.

JUDGMENT :

KESANG DOMA BHUTIA, J.

1. This Court has no determination to hear a revisional application of the year 2005, but for proper adjudication of the issue involved in C.O. No. 1366 of 2021, the revisional application no. C.O. No. 639 of 2005 need to be heard analogously with C.O. No. 1366 of 2021 as both the revisional application arises out of a decree of preemption passed in Misc. Appeal 106 of 1993, by learned Additional District Judge, Hooghly on 03.12.2003. Therefore, both the above C.Os are considered analogously.

2. Facts which is necessary for determination of the both the revisional applications, in gist is that present opposite parties Anil Kumar Pal and Sunil Kumar Pal have filed preemption case under Section 8 of the West Bengal Land Reform Act, 1955 being Misc. Case No. 20 of 1991 against the petitioner for preemption of 1 Katha, 15 Chattak and 15 sq. ft. in the Court of the First Munsif at Seramore. The learned trial court was pleased to dismiss such preemption case on 13.09.1993.

3. Being aggrieved by such order of dismissal the preemptor Anil Kumar Pal and Sunil Kumar Pal have preferred a Misc. Appeal No. 106 of 1993 before learned District Judge, Hooghly. The Appeal was finally heard by the Additional District Judge Hooghly and was pleased to allow the appeal granting preemption in respect of “KA” schedule property and directed the appellants to deposit the balance consideration money along with statutory compensation thereof within one month from the date of order. Subsequently, on the prayer of the appellants, time for deposit was further extended by another month and was pleased to reject the application for Review of such order filed by respondent/the present petitioner.

4. Being aggrieved by order of preemption passed by the learned First Appellate Court on 03.12.2003 and subsequent two orders of extension of time and rejection of review application, the present petitioner Ratan Dhar preferred C.O. No. 639 of 2005.

5. From the materials in record of C.O. No. 1366 of 2021, it is seen that opposite parties/preemptor no. 1 and 2 have already put the decree of preemption passed by the Appellate Court in Misc. Appeal No. 106 of 1993 on 03.12.2003 in execution. In such Execution Case, the petitioner has filed an application under Section 47 of Civil procedure Code and where he has challenged the executable of the decree of the Appellate Court on the ground that preemption was sought in respect of “Kha” Schedule Property comprising 1 Khatha, 15 Chattak and 15 sq. ft. of plot no 1850, but decree was passed in respect of Ka” Scheduled Property comprising 5 Khatha, 6 Chattak and 43 sq. ft. land of plot no. 1850.

6. While dealing with the application of the petitioner under section 47 of CPC, the learned trial/executing court has observed the learned Appellate Court has granted pre-emption in respect of “Ka” Schedule Property and not in respect of “Kha” Schedule Property and it has no authority to declare order of the superior Court to be null and void and thereby rejected the application u/s. 47 of CPC.

7. The petitioner Ratan Dhar being aggrieved by order of dismissal of his application under Section 47 of the Civil Procedure Code filed in Misc. Case No. 91 of 2018 passed by the learned Civil Judge (Junior Division) 4th Court, Serampore/the executing court on 18.01.2020 has preferred the present C.O. No. 1366 of 2021 along with an application under Section 5 of the Limitation Act, for condonation of delay of 563 days. The delay is condoned to prevent miscarriage of justice and for the reason that would be discussed below. Accordingly, CAN No. 1 of 2021 is disposed of.

8. It is undisputed facts the pre-emption is sought for in respect of “Kha” schedule property measuring 1 Khatha, 15 Chattak and 15 sq. ft. of plot no 1850 and not in respect of “Ka” Scheduled Property comprising 5 Khatha, 6 Chattak and 43 sq. ft. land of plot no. 1850. Therefore, apparently there is an error on face of the decree of preemption passed b