Calcutta High Court (Appellete Side)
Sm. Maya Sadhukhan And Others vs State Of West Bengal And Others on 6 November, 2017
1 06.11.2017
.
Item No. 3C.O. 2754 of 2017 Sm. Maya Sadhukhan and others.
Vs. State of West Bengal and others.
Mr. Ram Dulal Manna, Mr. Asesh Prasad Bakuli, Dr. Bishnupada Dutta, Mr. Chand Kishore Chakraborty.
... for the petitioners.
Mr. Partha Pratim Roy, Mr. Shehnaz Tareq Mina.
... for the State.
This revisional application is directed against an order dated 17th June 2017 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah in Miscellaneous Case No. 21 of 2017, by which Ejectment Execution Case No. 6 of 2007 was stayed till 14th July 2017.
It is uniformly submitted on behalf of the respective counsels that the said interim order has been extended from time to time and is still operative.
The facts, which emerged from the record, are that a suit for eviction was filed by the plaintiffs/petitioners against the defendants/opposite parties. The said suit was decreed ex parte and was put into execution, which gave rise to Ejectment Execution Case No. 6 of 2007. The defendants/opposite parties filed an application for setting aside the ex parte decree under Order IX Rule 13 of the Code of Civil Procedure, which was registered as Miscellaneous Case No. 21 of 2017. The said 2 proceeding was dismissed for default and a further application under Order IX Rule 9 of the Code has been filed for restoration of the said miscellaneous case. In the said proceeding, an application for stay is taken out and it appears from the impugned order that the trial court stayed the execution proceeding solely on the ground that the defendants/opposite parties are the bone fide public office and running Food and Supplies Department and thousands of inhabitants of the locality would be affected if the execution is not stayed.
Definitely it was not a public interest litigation nor a litigation for protection of fundamental rights guaranteed under the Constitution. The tenet of the order appears to this Court is such as if the learned Judge was more concerned with the collective rights of the various persons, who are not arraigned as parties in the said suit, vis-à-vis the individual right of a party to the suit. The petitioners admittedly obtained a decree against the opposite parties and in order to establish the rule of law the court is to execute and/or implement such decree provided there is no interdictive order passed by the competent court.
However, on the last occasion when the matter came up before this Court, it was submitted on behalf of the State of West Bengal, the judgment debtors, that they have already found an alternative accommodation and they are contemplating to shift all their materials at the new place so that the possession of the decree holders' property is handed over to them. The matter was adjourned to enable the learned advocate appearing on behalf of the State to take necessary instruction in this regard.
Today, Mr. Partha Pratim Roy, learned advocate appearing on behalf of the judgment debtors/opposite parties, hands over the written instruction received from the Rationing Officer, Dum Dum, 24-Parganas (North) indicating that shifting would be completed 3 within a month from such date. The Rationing Officer is also personally present in Court today. The written instruction filed in Court today is taken on record.
The learned advocate appearing on behalf of the decree holders/petitioners submits that if the possession is given, there would not have any subsisting grievance against the judgment debtors/opposite parties provided an undertaking is filed before this Court.
In view of the above, the Rationing Officer, Dum Dum, 24- Parganas (North), who is personally present in Court today, is directed to file an undertaking duly affirmed by her before this Court within a week from date.
There should be a specific averment in the said undertaking that the judgment debtors/opposite parties shall hand over the vacant and khas possession of the decreetal premises to the decree holders/petitioners on or before 10th December 2017.
Apart from the same, the judgment debtors/opposite parties shall pay to the decree holders/petitioners all arrears of rent on contractual rate on or before handing over of the possession. In the event the rent has been deposited by the judgment debtors/opposite parties either before the Rent Controller or in Court, they are at liberty to apply for refund of such deposits and if an application is made before the appropriate authority, such application shall be disposed of within fortnight from date.
Since the decree holders/petitioners have signified before this Court that they have no objection if the said deposits are returned to the judgment debtors/opposite parties, the said authority shall treat the same as "No Objection" and shall not insists for separate "No Objection" from the decree holders/petitioners.
The arrears of rent shall be calculated from the date of the alleged default till the month of November 2017. The arrears of 4 rent shall be paid by the judgment debtors/opposite parties to the petitioner no. 1 upon getting "No Objection" in writing from the other decree holders/petitioners.
In default of giving the undertaking or making payment of arrears of rent, as indicated above, it is open to the executing court to proceed with the execution case and shall see that the same is disposed of within three months from the date of communication of such default.
The impugned order is, thus, set aside.
The revisional application is allowed.
Let this matter appear in the supplementary list on 15th November 2017 under the heading "To Be Mentioned" for a limited purpose whether the undertaking has been filed by the said Rationing Officer or not.
ab (Harish Tandon, J.)