Calcutta High Court (Appellete Side)
M/S. Greencity Vincom (P) Ltd vs Smt. Manika Chandra & Ors on 14 June, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1
In the High Court at Calcutta
Civil Revisional Jurisdication
Appellate Side
Present:-
The Hon'ble Justice Subhasis Dasgupta.
CO. No. 2978 of 2018
M/s. Greencity Vincom (P) Ltd.
Vs.
Smt. Manika Chandra & Ors.
For the petitioners : Mr. Ashim Routh, Adv.
Ms. Anjana Banerjee, adv.
For the respondents : Mr. Satadeep Bhattacharya, Adv.
Mr. Subhankar Chakraborty, Adv.
Mr. Saptarshi Datta, Adv.
Ms. Divya Baid, Adv.
Judgment : 14.06.2019 Subhasis Dasgupta, J:-
The impugned order dated 18th July, 2018 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Misc. Case No. 127 o f2017 rejecting prayer for stay of further proceedings in connection with Ejectment Execution Case No. 10 of 2012 is the subject matter of challenge in this revisional application under Article 227 of the Constitution of India.
Learned advocate for the petitioner submitted that since petitioner was in actual possession of the tenanted house in respect of which an eviction decree 2 had been made against the original tenant without getting the petitioner impleaded as necessary parties, the refusal of the court below to stay the execution proceeding, initiated at the instance of the decree holder, was highly illegal. It was thus submitted by the petitioner that learned court below failed to understand the real purport of the prayer for stay even after admitting Misc. Case, taken out by the petitioner's praying for adjudication of their rights in application of the provisions contained in Order 21 Rule 98 to 101 CPC. Thus refusal to grant stay, according to petitioner, would cause serious prejudice to petitioner who is in actual possession of the tenanted house, and accordingly proposed for granting an order of stay in connection with the execution proceeding already taken out by the decree holder/landlord.
Learned advocate for the decree holders/opposite parties controverting the submission raised by the petitioner submitted that petitioner had no legal right, title and interest or occupational right in the suit property, alleged further that the petitioner had created a false document of sub-tenancy one month after the passing of eviction decree. According to decree holders/opposite parties the creation of sub-tenancy was not in accordance with law, and such no reliance should be attached on it. It was proposed that in the event of eviction decree being implemented, if the petitioner succeeds ultimately in connection with their application registered as Misc. Case No. 17 of 2017, the petitioner may claim recovery of possession in respect of the tenanted house taking order of court even after he was dispossessed for implementation of the eviction decree. It was 3 submitted with much stress that there left nothing to be interfered with, and the learned court below committed no illegality in refusing the prayer for stay.
The only point requiring address by this court is whether the court below was justified in refusing the prayer for stay or not.
Admittedly an eviction decree was passed in connection with Ejectment Suit No.14859 of 2011. An execution case was taken out, which was registered as Ejectment Execution Case No. 10 of 2012 to give effect to the decree of eviction. The original defendants Smt. Moriocla Theresa Joseph & Nigel Angelo Joseph were the actual tenants in the suit property, and they suffered decree of eviction. The original tenants were conspicuously made parties in the Ejectment Suit.
The contention raised by the decree holder/op to the effect that the document sub-tenancy was created one month after passing of decree of eviction appears to have received ratification from document produced. Documents were there to reveal before the court below that the decree of eviction was passed on 18th September, 2012 while the registered deed of sub-tenancy was created on 19th October, 2012. There is nothing to reveal whether the sub-tenancy was created with due knowledge consent of the original landlord in writing or not. When there was apparent document before the court below that sub-tenancy was created one month after the date of passing of decree of eviction, the court below proceeded to reject the prayer for stay relying upon such documents forgetting the fact that the Misc. Case being No. 17 of 2017 was in existence, which was 4 filed at the instance of petitioner seeking adjudication of his rights, as available under the provisions of Order 21 Rule 98 to 101 CPC.
The crucial fact is that petitioner claimed himself to be in possession of the tenanted house, against which a decree of eviction was passed. In the original eviction suit, plaintiff/decree holder had no occasion to implead the petitioner, as opposite party whiten the meaning of necessary party in view of the fact that the sub-tenancy was created on 19th October, 2012 i.e. long after the date of passing decree of eviction.
However, in the given context of this case refusal to grant order of stay in respect of Execution Case No. 10 of 2012 would invite further complication, and there is chance of giving birth of multiplicity of proceedings between the parties. Pending adjudication of the rights of the petitioner, surfaced in connection with his claim, made under Order 21 Rule 98 to 101 CPC in connection with Misc. Case No. 17 of 2017, an order of stay of the execution case subject to furnishing cash security of Rs.1,00,000/- (one lakh), to be made by petitioner within 15 days from the day of communication of this order before the court below, will sub-serve the purpose of justice, as it is recorded borrowing the principle enunciated under Order 41 Rule 5(3) CPC, otherwise a original decree holder would not be able to enjoy the fruits of the eviction decree during his life time for different strategies being employed favourable to the purpose of person causing resistance to the execution of decree.
The revisional application succeeds.
5The ejectment Execution Case No. 10 of 2012 now pending before the learned Civil Judge (Junior Division), 4th Court, Alipore be stayed till the decision of Misc. Case No.17 of 2017 subject to furnishing security of Rs. 1,00,000/-(one lakh) by petitioner within the period as already mentioned hereinabove.
The court makes it clear that if security amount is furnished by the petitioner, the ejectment Execution Case No. 10 of 2012 now pending before the learned Civil Judge (Junior Division), 4th Court, Alipore shall be stayed till the decision of Misc. Case No.17 of 2017 instituted by the petitioner.
The court makes it further clear that if the petitioner ultimately succeeds with reference to his claim after lawful adjudication of his rights, the money deposited, as security, would be taken back by petitioner taking order of the court below. In the event, the petitioner does not succeed with respect to his claim, raised in Misc. Case No. 17 of 2017, the money deposited, as security, shall be forfeited and the decree holder would be at liberty to recover the same taking order of the court without making any further reference to the petitioner.
If the amount, as directed to be furnished as security, is not deposited within the period as stipulated, the execution proceeding already taken out by the decree holder shall proceed in accordance with law.
Learned Civil Judge (Junior Division), 4th Court, Alipore is directed to dispose of the Misc. Case No. 17 of 2017 as expeditiously as possible without granting unnecessary adjournment, unless it is avoidable, preferably within a period of one year from the date of communication of this order. 6
Petitioner is directed to make communication of this order to the learned court below.
With this observation, and direction, the revisional application stands disposed of.
Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)