Calcutta High Court (Appellete Side)
Bhudev Mallick Alias Bhudeb Mallick And ... vs Ranajit Ghoshal And Others on 23 September, 2019
1 S/L. 36.
September 23, 2019.
MNS.
C. O. No. 3283 of 2019 Bhudev Mallick alias Bhudeb Mallick and another Vs. Ranajit Ghoshal and others Mr. Kushal Chatterjee, Mr. Suman Chakraborty ... for the petitioners.
Mr. Srijib Chakraborty, Ms. Suransi Baidya ...for the opposite parties.
The present challenge is directed at the behest of the judgment-debtors of a decree for permanent injunction.
Learned counsel appearing for the petitioners argues that in view of the application filed for arrest and detention in civil prison of the petitioners, the same ought to have been governed under Order XXI Rule 11A of the Code of Civil Procedure, which, it is argued, contemplates an affidavit being filed, stating the ground on which arrest is applied for. In the absence of such an affidavit in the present case, the executing court acted without jurisdiction in allowing the execution case.
The next contention of learned counsel for the petitioners is that the petitioners' written objection to the application for execution was not accepted due to delay, which was challenged in a civil revisional application before this Court.
Although the petitioners prayed for stay of the execution case in view of pendency of an application for extension of stay granted in the previous revisional application, the 2 executing court acted in hot haste in passing the impugned order, which was thus vitiated on such ground as well.
Learned counsel appearing for the decree-holders, on the other hand, points out that the previous revisional application challenging the non acceptance of written objection by the present petitioners was dismissed by a co-ordinate bench on the ground that the same had become infructuous in view of passing of the order impugned herein. As such, there is no challenge existing at present to the order refusing to accept the written objection of the petitioner.
In such view of the matter, the argument, that the petitioner did not get any opportunity to file written objection, has been rendered academic since there is no existing challenge pending against the same.
Moreover, a plain reading of Rule 11A of Order XXI of the Code suggests that the same envisages an application being made for the arrest and detention in prison of the judgment-debtors, stating the grounds on which arrest is applied for, or be accompanied by an affidavit stating such grounds.
The language of Order XXI Rule 11A of the Code suggests clearly that the grounds for arrest and detention may be contained either in the application or in the accompanying affidavit.
In the present case, the execution application itself contained the ground, sufficient to entitle the executing court to pass an order of execution of the decree for permanent injunction.
As such, no jurisdictional error was committed by the executing court in passing the impugned order.
3
Accordingly, C. O. No. 3283 of 2019 is dismissed on contest. There will be no order as to costs.
At this juncture, learned counsel for the petitioners prays for stay of the instant order for a limited period.
However, since, in the opinion of this court, no question of law of substantial importance is involved in this case, the prayer for such stay is refused.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)