Calcutta High Court (Appellete Side)
Deb Narayan Basu & Anr vs Sankari Sett & Ors on 29 April, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
29.04.2024 Ct. No. 19 Sl. No.27 Cp C.O. No. 3492 of 2023 Deb Narayan Basu & anr.
Vs. Sankari Sett & ors.
Mr. Sounak Bhattacharya Mr. Sounak Mandal ... for the Petitioners.
Prima facie, it appears to this court that Ejectment Execution Case No. 176 of 2003 ought to have been stayed by the learned Judge during the pendency of the application under Order 21 Rule 99 to 101 of the Code of Civil Procedure filed by the petitioners. The petitioners as third parties are resisting the decree.
It prima facie appears that the learned court decided the merits of the application filed by the third parties which is J. Misc. Case No.113 of 2023 by overlooking the judgment and decree dated September 23, 2004, passed in Title Suit No.442 of 1989. It is submitted that the Execution Case No. 176 of 2003 was proceeding on the basis of the decree passed in Ejectment Suit No. 892 of 1969. Whereas, another competent court had held such decree to be void. The matter requires further deliberation.
In the meantime, the order impugned deserves to be stayed as there appears to be a contradiction in the findings of the learned executing court and the findings of a competent court of civil jurisdiction in which the decree sought to be executed in this execution proceeding was found to be void. The learned executing court proceeded on the 2 schedule of the property and found that the earlier decree was in respect of one room and varandah. I find that in Title Suit No.442 of 1989, a decree of permanent injunction restraining Pachu Saday Sett from proceeding with the execution of the decree passed in Ejectment Suit No. 892 of 1969, had been granted. The heirs of Pachu are now proceeding with the execution of the decree arising out of Title Suit No.892 of 1969 and Execution Case No. 176 of 2023 is continuing.
There shall be stay of the order impugned and no steps towards execution of the decree shall be taken upto September 30, 2024, or until further orders whichever is earlier.
The question of payment of occupational charges by the petitioners who have suffered a decree of eviction shall be decided on the next date. However, as an ad hoc measure, a sum of Rs.75,000/- will be deposited in the learned Executing Court within three weeks from date. Failing which, the stay shall stand vacated and the execution shall proceed. The Misc. Case 113 of 2023 to continue expeditiously.
Let the matter appear on July 12, 2024, at 10.30 am. Let a copy of the revisional application along with the server copy of this order be served upon the opposite parties and the learned advocate appearing on behalf of the opposite parties in the learned court below.
Affidavit of service to be filed on the next date.
(Shampa Sarkar, J.)