Calcutta High Court (Appellete Side)
Sri Kashi Nath Dey vs Biren Mohanty And Others on 12 November, 2018
1 12.11.2018
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Item No. 39C.O. 3689 of 2018 Sri Kashi Nath Dey Vs. Biren Mohanty and others.
Mr. Partha Pratim Roy, Mr. Sarbananda Sanyal, Mr. Dyutiman Banerjee.
... for the petitioner.
Mr. Hiranmoy Bhattacharya, Ms. Jamuna Saha.
... for the opposite party no. 1.
The present challenge is taken out by the decree holder in an eviction suit against an order passed by the executing court granting stay of execution in favour of a third party objector. The third party objector, being the present opposite party no. 1, is represented along with the petitioner.
Service on the other opposite parties is dispensed with. It is contended on behalf of the decree holder/petitioner that the objector is the brother of the judgment debtor and was set up by the judgment debtor after the latter lost up to the appellate forum. It is further submitted that the photocopies of documents submitted in the court below in support of the prayer for stay were not sufficient to entitle the objector to stay, as granted.
Learned Counsel for the petitioner further submits that the executing court acted without jurisdiction in granting blanket stay of the execution without imposing any damages/mesne profits/occupation charges as condition for stay.
2Learned Counsel for the judgment objector/opposite party no. 1 submits that sufficient prima facie material was produced in the court below to entitle the opposite party no. 1 to the stay, as granted. It is further submitted that, since the decree holder himself did not pray for any occupation charges, the executing court was well within its jurisdiction to grant stay without imposing any occupation charges.
It is seen from the impugned order that the executing court considered the materials on record and arrived at the finding that sufficient prima facie case had been made out by the opposite party no. 1 for grant of stay. Since at the interim stage, the judgment objector was not required to prove his case to the hilt but only had to make out a prima facie case to go for trial, the executing court could not be faulted for having granted stay of execution.
However, Order XLI, Rule 5(3) of the Code of Civil Procedure, the principles of which also apply to an executing court mutatis mutandis, mandates the court to consider whether security has been given by the applicant for the due performance of the decree as may normally be binding on him.
In such view of the matter, since the executing court did not consider at all as to whether any mesne profits/damages/occupation charges could be imposed as a condition for grant of stay in favour of the opposite party no. 1, the matter ought to be remanded back to the said court for such limited purpose.
Accordingly, CO 3689 of 2018 is disposed of by setting aside the impugned order and remanding the matter back to the executing court to consider the question as to whether any occupation charges/damages ought to be imposed on the opposite party no. 1 as a condition for grant of stay of the execution of the 3 eviction decree. If the executing court is of the opinion that such occupation charges ought to be granted, the executing court will quantify such amount upon giving a short opportunity to both sides to produce materials in support of their respective contentions in that regard.
It is made clear that hereby the order of stay is not set aside on merits and the matter is remanded for the executing court to consider the question of occupation charges/damages/mesne profits only. The executing court will complete such adjudication within three weeks from the date of communication of this order to the said court upon giving opportunity to both sides to produce materials, as indicated above.
Till such adjudication is done, there will be stay of execution of the decree of eviction in question.
Upon arriving at a conclusion as to the occupation charges, the executing court will simultaneously dispose of the stay application accordingly. The aforesaid time frame is peremptory and mandatory.
There will be no order as to costs.
ab (Sabyasachi Bhattacharyya, J.)