Calcutta High Court
Ajit Kumar Kantilal Shah And Anr vs Sanjay Ojha on 3 April, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-14
ALP 4 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
AJIT KUMAR KANTILAL SHAH AND ANR.
Versus
SANJAY OJHA
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 3rd April, 2019.
Appearance:
Mr. Moinak Bose, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Rishav Karnani, Adv.
Mr. Sourjya Mukherjee, Adv.
Mr. Joydeep Guha, Adv.
Mr. Tirthankar Nandi, Adv.
...for the petitioners.
Mr. Suddhasatva Banerjee, Adv.
Mr. Rajesh Upadhyay, Adv.
...for the respondent.
The Court : Let affidavit of service filed in Court today be kept with the record.
This is an application under Clause 13 of the Letters Patent, 1865 praying for transfer of Ejectment Execution Case No.48 of 2010 and all miscellaneous applications being Misc. Cases Nos.350 of 2015, 138 of 2016, 12 of 2017, 217 of 2017 and 200 of 2018 pending before the learned 3rd Bench, Small Causes Court at Calcutta to this Court.
The petitioners filed an eviction suit against the respondent being Ejectment Suit No.1355 of 1976. On 27th February, 2001 an 2 eviction decree was passed in favour of the petitioners. The respondent's first appeal was dismissed on 28th August, 2002. The second appeal carried before this Court was dismissed on 26th September, 2013.
In the meantime, the petitioners had sought enforcement of the eviction decree by filing an execution proceeding before the Small Causes Court at Calcutta which was numbered as Ejectment Execution Case No.48 of 2010.
Being aggrieved by the delay in the execution case being decided, the petitioners approached this Court by filing a revisional application being C.O. No.3912 of 2014. The said application was disposed of by an order dated 11th December, 2014, the operative portion whereof reads as follows:
"Since the petitioners say that there is no impediment to the execution proceedings being continued and concluded, CO 3912 of 2014 is disposed of by requesting the V Bench, Small Causes Court at Calcutta to ensure that Ejectment Execution Case 48 of 2010 arising out of Ejectment Suit 2073 of 2000 is brought to its logical conclusion without granting any adjournments to the judgment-debtor as expeditiously as possible and, preferably, within three months of the date of receipt of a copy of this order.
It is made clear that unless there is an order of any judicial forum restraining the executing court or the decree-holders from proceeding with the execution, the execution proceedings should not be adjourned." 3 In spite of the aforesaid order of this Court, the execution proceeding did not come to a conclusion. The petitioners approached this Court again by filing C.O. No.716 of 2016. The said revisional application was disposed of by an order dated 20th April, 2016 by directing the learned Judge of the Small Causes Court to dispose of Misc. Case No.101 of 2015 preferably within six months without granting unnecessary adjournment to either of the parties. In spite of the aforesaid, the execution proceeding remained pending along with several miscellaneous cases. The petitioners approached this Court by filing an application under Clause 13 of the Letters Patent being ALP No.9 of 2017. By an order dated 3rd January, 2018 this Court directed the learned executing court to dispose of the pending miscellaneous cases as expeditiously as possible and preferably within a period of eight months from the date of communication of the order. It was observed that the learned Judge shall not give any adjournment to either of the parties unless there are compelling reasons to do so.
Being aggrieved with the said order, the petitioners approached the Hon'ble Supreme Court by way of a Special Leave Petition. By an order dated 17th April, 2018 the Special Leave Petition was disposed of by directing the trial court to comply with the direction given by the High Court and complete the proceeding within the time schedule fixed by the High Court. 4
More than eight months elapsed since this Court passed the last order dated 3rd January, 2018 fixing eight months time period for completion of the execution proceeding. However, the execution proceeding remained pending.
Being aggrieved, the petitioners have again approached this Court by filing an application under Clause 13 of the Letters Patent for transferring to this Court the execution proceeding pending before the learned court below.
Learned Counsel appearing for the respondent submitted that progress is being made in the execution proceeding. Witness action is going on. Hence, the proceeding may not be transferred to this Court.
Learned Counsel for the petitioners disputes such submission and submits that the rate of progress before the learned executing court is extremely slow and it has almost become a joke.
I do not want to enter into such controversy. The fact remains that there are at least three orders of this Court and an order of the Hon'ble Supreme Court which have not been adhered to by the learned executing court. This is to say the least, outrageous. When the highest Court of the land directed the learned executing court to conclude the proceeding within the time frame fixed by the High Court, it was imperative for the learned executing court to comply with such direction but it has not done so. This conduct of the learned executing court ought to be 5 deprecated and I do so in the strongest terms. Judicial discipline warrants that directions of higher Courts are complied with by the subordinate courts.
Let this application stand adjourned for ten weeks. I direct the learned executing court to conclude the proceeding pending before it within eight months from the date of communication of this order without granting any adjournment to the parties and, if necessary, upon hearing the case on a day-to-day basis. It is high time that the decree that was passed in 2001 is executed or it is declared that it is not executable. The proceeding must come to a finality and conclusion. The execution proceeding has been pending for nine years. Such delay is completely unacceptable.
In the event, the execution proceeding is not concluded within the time period indicated above, the learned Judge presiding over the executing court shall file a report before the learned Registrar, Original Side of this Court explaining as to why the order of this Court has not been complied with. The learned Registrar shall place such order before this Court.
List the matter ten weeks hence.
(ARIJIT BANERJEE, J.) s.pal