Calcutta High Court (Appellete Side)
Smt. Sanaka Mahajan & Ors vs Sri Sanjoy Ghosh & Anr on 6 March, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1
07,SL,Ct.18.
6.03.2020.
AJ.
C.O. 937 of 2020 Smt. Sanaka Mahajan & Ors.
-Vs-
Sri Sanjoy Ghosh & Anr.
Mr. Uttam Kumar De, Ms. Writi De.
... for the petitioners.
Mr. Jahar Chakraborty, Mrs. Sabita Mukherjee Roy Chowdhury.
.....for the opposite parties.
Affidavit-of-service filed in Court today be kept with the record. The judgment debtors of a decree of eviction are the petitioners of the instant application under Article 227 of the Constitution of India.
Ejectment Execution Case No. 18 of 2013 has been levied before the learned 2nd Bench, Presidency Small Causes Court at Calcutta for execution of the said decree.
The petitioners in the said execution case filed an application under Section 47 of the Code of Civil Procedure registered as Misc. Case No. 40 of 2019.
The petitioner by the said application under Section 47 of the Code is questioning the executability of the said decree on the grounds that the description of the suit property is incorrect and the petitioner after the suit was decreed got vacant possession of some portions of the suit premises but relet the same as such the decree being a decree on the ground of reasonable requirement is not executable 2 in view of the restriction imposed on the decree-holder for releting under sub-section (3) of Section 18 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to the said Act in short).
The learned Trial Judge by the order impugned being Order dated January 07, 2020 has dismissed the said misc. case.
The Executing Court below in the order impugned has held that the petitioner has failed to produce any document or witness to corroborate his allegation and the persons visible in the photographs and D.V.D produced by the petitioner cannot be identified as new tenants.
This Court is unable to reappreciate the said evidence to disturb the said findings in exercise of the jurisdiction under Article 227 of the Constitution of India.
That apart sub-section (3) of Section 18 of the said Act puts a restriction on a decree holder who has obtained a decree of eviction on the ground that the suit premises is reasonably required by him for his own occupation as contemplated under Section 13(1)(ff) of the said Act to relet the suit property for ten years from the date of obtaining the vacant possession to any person other than the tenant.
The restriction of the provision of sub-section (3) of Section 18 of the said Act is therefore not attracted in the present case as the possession of the suit property is still with the petitioners.
This is another ground for not interfering with the order impugned. C.O. 937 of 2020 is dismissed with the above observation. There shall be no order for costs.
3Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)