Calcutta High Court (Appellete Side)
Malay Kanti Bhattacharjee & Ors vs Binoy Kumar Jha & Anr on 7 September, 2016
1
06
07.09.2016
mb
In the High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side
C.O.2734 of 2016
(Assigned)
Malay Kanti Bhattacharjee & Ors.
-Vs.-
Binoy Kumar Jha & Anr.
Mr. Suvadeep Sen,
Mr. Nitin Kumar Das
...for the petitioners
The present revisional application is at the instance of the
plaintiffs-decree holders in the Ejectment Suit No. 416 of 2006
which was filed before the learned Judge, 3rd Bench, Presidency
Small Causes Court at Calcutta. In the eviction suit, the petitioners
had prayed for a decree for eviction of the defendant, being the
opposite party no. 2 in this revisional application, from the suit
property at premises No. 16/3/C, Dixon Lane, Kolkata. The
defendant-opposite party no. 2 did not contest the eviction suit and
on December 13, 2007, the learned Judge, 3rd Bench, Presidency
Small Causes Court at Calcutta decreed the ejectment suit in
favour of the petitioners. Thereafter, the petitioners put the
eviction decree into execution by filing the Execution Case No. 61 of
2008 before the learned Judge, 3rd Bench, Presidency Small Causes
2
Court at Calcutta. According to the petitioners, when the Bailiff
went to execute the eviction decree, he was resisted by the opposite
party no. 1. Thus, the petitioners filed an application, being Misc.
Case No. 147 of 2010, under Order XXI Rule 97 of the Civil
Procedure Code, 1908 before the learned Executing Court. The
opposite party no. 1 also filed an application, being Misc Case No.
213 of 2010, under Order XXI Rule 101 of the Civil Procedure
Code, 1908 before the learned Executing Court. By an order dated
August 29, 2014 the learned Executing Court dismissed the
application filed by the opposite party no. 1.
Feeling aggrieved by the said order dated August 29, 2014
passed by the learned Executing Court, the opposite party no. 1
filed an appeal, being Misc. Appeal No. 55 of 2014, before the
learned Chief Judge, City Civil Court at Calcutta.
In this application, the petitioners have prayed for a direction
upon the learned appellate Court below for early disposal of the
above appeal.
On August 29, 2016 this Court directed the petitioners to
serve a copy of this application on the learned advocate
representing the opposite party no. 1, in the Misc. Appeal No. 55 of
2014, before the learned Court below. From the affidavit of service
filed on behalf of the petitioners, it appears that the learned
advocate representing the opposite party no. 1, before the learned
3
Court below, has received the copy of this application forwarded to
him by speed post with acknowledgment due. Let, the said affidavit
of service be kept on record. However, none appears on behalf of
the opposite party no. 1 to oppose this application. In these
circumstances, this application is taken up for hearing in the
absence of the opposite party no. 1.
According to Mr. Sen, learned advocate representing the
petitioners, the said Misc. Appeal No. 55 of 2014 was admitted by
the learned Court below on January 13, 2015 and the same is
pending disposal for a long time. The grievance of the petitioners is
that the said Misc. Appeal No. 55 of 2014 is being adjourned from
time to time by the learned Court below on the ground that the
opposite party no. 1-appellant has not been able to serve the copy
of the memorandum of appeal on the defendant-judgment debtor-
opposite party no. 2 who has since left the suit property, which is
also evident from the endorsement made by the postal department
on the envelopes by which the opposite party no. 1 had forwarded
the copy of the memorandum of appeal to the opposite party no. 2.
He drew the attention of this Court to the various orders passed by
the learned Court below from March, 2015 to June 02, 2016
particularly the order No. 5 dated April 05, 2016 where it was
recorded by the learned Court below that the registered envelope
and the acknowledgement due card in respect of the respondent
4
no. 4 was returned without service with a postal remark "left". Mr. Sen strenuously contended that in view of the pendency of the appeal before the learned Court below, the petitioners, being decree-holders, are unnecessarily prevented from executing the eviction decree obtained by him against the opposite party no. 2.
Having considered the materials on record I find substance in the submission of Mr. Sen, learned advocate appearing for the petitioners. Accordingly, the learned Chief Judge, City Civil Court at Calcutta is requested to dispose of the Misc. Appeal No. 55 of 2014 as expeditiously as possible, preferably within December 31, 2016 without granting any adjournment to either of the parties.
It is made clear that the learned Court below may direct the appellant in Misc. Appeal no. 55 of 2014 to cause service of notice of appeal on the defendant-respondent no. 4, through substituted service, by way of immediate paper publication.
With the above directions, the revisional application, being C.O. 2734 of 2016, stands disposed of.
There shall, however, be no order as to costs.
Urgent certified website copy of this order, if applied for, be made available to the petitioners upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)