Calcutta High Court (Appellete Side)
533/2009 on 30 March, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
1
S. A. T. No. 533 of 2009
Mr. Priyabrata Mukherjee,
Mr. Sumit Roy
........for the appellant.
Ms. Sabita Mujkherjee
....for the respondent.
Seen the report of the Additional Stamp Reporter, it appears that the name of the defendant no. 2, is neither appearing in the decree of the lower appellate court nor he has been impleaded as a party in this appeal.
We are informed that the defendant no. 2, namely, Nabajit Sarkar, died on October 23, 2003 and, that is, during the pendency of the suit in the court below. His only heir, being his mother, was already on record and, therefore, his name was expunged. Unfortunately, in preparing the decree, the trial court included the name of the defendant no. 2 in the decree.
The office is directed to send down the certified copy of the decree to the court below immediately.
The learned trial judge is requested to make necessary corrections in the decree and, also, make consequential corrections in the certified copy of the decree.
After necessary corrections, the learned trial judge is, further, requested to send back the certified copy of the decree and the records to this Court immediately. This process must be completed within one month.
2This appeal will be heard on the following substantial question of law :
Whether the learned judge in the lower appellate court substantially erred in law in appreciating the requirement of the plaintiff in the light of the subsequent decree passed in Ejectment Suit No. 81 of 2003 and consequential recovery of the possession from the erstwhile tenant?
The office is directed to call for the records by a special messenger at the cost of the appellant by one week.
Let such special messenger costs be put in by one week.
Ms. Sabita Mukherjee, learned advocate appears and accepts notice of this appeal on behalf of the respondent.
Therefore, formal service of notice of appeal on the respondent is dispensed with and the appeal is treated as ready as regards service by appearance.
After arrival of lower courts' records, the office is directed to examine the lower courts' records and, if found complete, to issue notice of arrival of lower courts' records on the learned advocate for the appellant.
The appellant is directed to prepare and file requisite number of paper books, printed, typewritten or cyclostyled, as the case may be, within six weeks from the date of service of notice of arrival of lower courts' records on the learned advocate for the appellant.
Re : C. A.N. 747 of 2010(stay application) 3 After hearing Mr. Priyabrata Mukherjee, learned advocate appearing for the appellant, and Ms. Sabita Mukherjee, learned advocate appearing for the respondent, we dispose of the application for stay by directing stay of all further proceedings in Ejectment Execution Case No. 141 of 2007 pending before the learned Judge, Third Bench, Presidency Small Causes Court, Calcutta, till the disposal of the appeal on the following conditions :
a) The appellant must deposit all arrears of rent and the decreetal costs in the court below by four weeks.
b) The appellant must go on depositing current monthly occupational charges at the rate of rent last paid, month by month, in the court below.
First of such deposit for the month of March, 2011 is to be paid by April 18, 2011 peremptorily. All subsequent deposits shall be made by fifteenth of each succeeding month for which the same is due and payable.
c) If the arrears of rent and current rent are not deposited, the stay shall stand vacated and the decree shall be executable at once.
The application for stay, filed under C. A.N. 747 of 2010, is, thus, disposed of.
We make no order as to costs.
(Subhro Kamal Mukherjee, J.) (Tarun Kumar Gupta, J.) 4