Calcutta High Court (Appellete Side)
The Card Board Materials & Printing Co. ... vs Martin Burn Limited And Others on 10 February, 2017
Author: R.K. Bag
Bench: R.K. Bag
1
Serial No.5.
February 10, 2017
Bpg.
C.O. 3568 of 2016
The Card Board Materials & Printing Co. Pvt. Ltd.
-Versus-
Martin Burn Limited and others.
With
C.O. 3453 of 2016
With
CAN 11621 of 2016
Everlasting Procon Private Limited and others
-Versus-
The Card Board Materials & Printing Co. Pvt. Ltd.
and another.
Mr. S.P. Roychowdhury,
Mr. Dilip Kumar Chatterjee,
Mr. Hiranmay Bhattacharya,
Mr. Taraknath Halder.
...for the petitioner in C.O.3568 of 2016
and respondent no.1 in C.O. No.3453
of 2016.
Mr. Jishnu Saha, Mr. Sakya Sen, Mr. Sulagna Mukherjee.
...for the respondent nos.2 to 16 in C.O.3568 of 2016 and petitioners in C.O. No.3453 of 2016.
Mr. Arindam Banerjee, Ms. Arpita Saha, Mr. Sandip Agarwal.
...for the opposite party no.1 in C.O.3568 of 2016 and opposite party no.2 in C.O.3453 of 2016.
2C.O.3568 of 2016 and CAN 11621 of 2016 arising out of C.O.3453 of 2016.
The applicant/objector to the execution proceeding has filed an application praying for recalling and/or review of the order dated November 18, 2016 passed by this Court in connection with C.O. No.3453 of 2016. Similarly, the petitioner/objector to the execution proceeding has preferred an application under Article 227 of the Constitution of India challenging the order dated August 29, 2016 passed by learned Additional District Judge, 1st Court at Sealdah, District - North 24 Parganas in connection with Miscellaneous Appeal no.66 of 2016 arising out of Ejectment Execution Case no.66 of 2016 which arises out of Ejectment Suit no.6 of 2014.
The backdrop of filing the application by the objector to the execution proceeding being CAN 11621 of 2016 is as follows: The applicant/objector to the execution proceeding filed an application under Order 21 Rules 97, 98, 101 and 103 read with Section 151 of the Code of Civil Procedure before the executing court, when the decree-holders put into execution the decree passed by the civil court. The said objection of the applicant/objector was registered as Miscellaneous Case no.6 of 2016 before learned Civil Judge (Senior Division), Sealdah. Learned Civil Judge rejected the application filed by the present applicant/objector under Order 21 Rules 97, 98, 101 and 103 read with Section 151 of the Code of Civil Procedure. The said applicant/objector preferred Miscellaneous Appeal No.66 of 2016 before learned District Judge. On August 29, 2016 learned Additional District Judge, Sealdah passed an interim order granting stay of operation of the decree passed by the trial court, subject to payment of occupational charge at the rate of Rs.3,000/- per month from the date of the decree.
3The decree-holder challenged the said order passed by learned Additional District Judge, Sealdah by preferring an application under Article 227 of the Constitution of India being C.O. No.3453 of 2016. On November 18, 2016 this Court disposed of the said revisional application by modification of the interim order passed by the first appellate court in Miscellaneous Appeal no.66 of 2016 to the effect that the stay of the order passed by the executing court will be subject to payment of occupational charge by the opposite party no.1 to the tune of Rs.1,00,000/- per month from the date of decree, in default the stay stands vacated. The applicant/objector has filed the application for recalling the said order passed by this Court on November 18, 2016 in C.O. No.3453 of 2016. It is pertinent to point out that the revisional application filed by the applicant/objector being C.O. NO.3568 of 2016 was not assigned to this Court along with C.O.No.3453 of 2016 and as such C.O. No.3568 of 2016 could not be taken up for hearing by this Court at the time of disposal of C.O. no.3453 of 2016.
Mr. S.P. Roychowdhury, learned senior counsel appearing on behalf of the applicant/objector and petitioner in C.O. No.3568 of 2016 contends that Miscellaneous Appeal no.66 of 2016 pending before the court of learned Additional District Judge, Sealdah has already been disposed of on January 31, 2017. He fairly submits that the interim order of fixing occupational charge for grant of stay of decree passed in Misc. Case is no more in force after disposal of Miscellaneous Appeal no.66 of 2016. The further submission of Mr. Roychowdhury is that revisional application being C.O. no.3568 of 2016 preferred by the applicant/petitioner/objector has also become infructuous after disposal of Miscellaneous Appeal No.66 of 2016. However, Mr. Roychowdhury apprehends that the amount of occupational charge fixed by this Court at the rate of Rs.1,00,000/-
4per month can be relied upon by the decree-holders if any application for stay is moved before the High Court after preferring the appeal against the judgment and decree passed in Miscellaneous Appeal no.66 of 2016.
On the other hand, Mr. Sakya Sen, learned counsel representing the opposite party nos.2 to 16/decree-holders contends that any order passed by the court at the interim stage of the suit or appeal cannot have any binding force on the court at the time of final hearing of the said suit or appeal and as such there is no need to make any observation by this Court as prayed by Mr. Roychowdhury.
Having heard learned counsel representing both the parties, I do not find any cogent reason to recall the order dated November 18, 2016 passed by this Court in connection with C.O.No.3453 of 2016. In view of the submission of the Bar, I would like to observe that the amount of occupational charge fixed by this Court at the interim stage of hearing of Miscellaneous Appeal No.66 of 2016 need not be considered by the court to pass any order in connection with stay of judgment and decree passed in Miscellaneous Appeal no.66 of 2016, if any such appeal is subsequently preferred by the objector to the execution proceeding before this Court.
With the above observation, both revisional application being C.O.3568 of 2016 and CAN 11621 of 2016 are disposed of.
There will be no order as to costs.
5Urgent photostat certified copies of this order, if applied for, shall be given to the learned counsel for the parties, upon compliance of all necessary formalities.
(R.K. Bag, J.)