Calcutta High Court (Appellete Side)
Sri Bijoy Kumar Lala vs Amit Srivastav & Anr on 15 March, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 22,SL,Ct.21. 15.03.2019
AJ.
C.O. 1902 of 2017 Sri Bijoy Kumar Lala
-Vs-
Amit Srivastav & Anr.
Mr. Gopal Chandra Ghosh.
... for the petitioner.
Affidavits-of-service filed in Court today are taken on record. None appears on behalf of the opposite parties in spite of service. The certified copy of the order passed in the Ejectment Execution Case No. 498 of 2019 is also taken on record.
This revisional application under Article 227 of the Constitution of India is at the instance of the decree holder and is directed against order dated November 05, 2016 passed by the learned Civil Judge (Junior Division), 4th Court at Alipore, district 24-Parganas (South) in Ejectment Execution Case No. 05 of 2015.
The petitioner filed a suit for ejectment of the opposite parties from the suit property. The said suit was decreed on contest on March 25, 2016. The decree was put into execution, which gives rise to Ejectment Execution Case No. 05 of 2015. The Bailiff on March 14, 2016 delivered the possession of the suit property to the petitioner in execution of the said decree. Immediately thereafter on the same day in the afternoon, the opposite parties dispossessed the petitioner from the suit property. The petitioner immediately filed an 2 application under Order 21 Rule 35 read with Section 151 of the Code of Civil Procedure in the said execution case praying that a fresh writ of possession be issued in view of the aforesaid circumstances. The learned Executing Court by the order impugned has rejected the said application of the petitioner and has recorded the satisfaction of the decree.
Mr. Ghosh, learned advocate appearing on behalf of the petitioner submits that the petitioner immediately after being dispossessed from the suit property by the judgment-debtors applied before the learned Executing Court, prior to the satisfaction of the said decree being recorded and he by placing reliance on a decision of the learned Single Judge of this Court in the case of Shri Suraj Rajak @ Dhobi & Ors. -Vs- Sri Jambulal Dhobi & Anr. reported in 2012(1) CLJ Calcutta 619 further submits that if the decree holder is dispossessed from the suit property after being put into possession in execution of the decree the Executing Court has the jurisdiction to issue fresh writ of possession even after recording satisfaction of the decree.
Heard Mr. Ghosh and perused the materials-on-record. The decree under execution has attained finality and the petitioner was put into possession of the suit property in execution of the said decree. Prior to the recording of full satisfaction of the said decree the petitioner was dispossessed from the suit property by the judgment-debtors. The petitioner being so dispossessed when applied before the Executing Court for issuance of fresh writ of possession, the learned Executing Court should have allowed the said application. The learned Executing Court instead of doing so has 3 dismissed the said application and thereafter recorded the satisfaction of the decree.
The learned Single Judge of this Court in the decision reported in 2012(1) CLJ Calcutta (supra) has held that the decree holder is entitled to apply before the Executing Court for issuance of a fresh writ of possession in such circumstances even when the satisfaction of the decree has been recorded instead of filing a separate suit.
In view of the discussion made above, the order impugned is set aside. The application filed by the petitioner under Order 21 Rule 35 read with Section 151 of the Code is allowed.
The learned Executing Court is directed to issue fresh writ of possession immediately and shall ensure that the execution case must be disposed of within a period of three months from the date of communication of this order.
The time limit fixed for disposal of the execution case by the present order is preemptory and mandatory.
The revisional application, being C.O. 1902 of 2017 is, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)