Calcutta High Court (Appellete Side)
Hamida Bibi Alias Laskar vs Miss Flora Ellas Nahoum & Ors on 30 April, 2018
1 18. 30.04.2018
mb In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
C.O. No. 874 of 2018
Hamida Bibi alias Laskar
-Vs.-
Miss Flora Ellas Nahoum & Ors.
Mr. Gouranga Kumar Das
...for the petitioner
Mr. Surajit Nath Mitra,
Mr. Rajarshi Dutta,
Mr. Sayantan Bose
...for the opposite parties
The petitioner has filed an application under Order XXI Rule 101 of the Code of Civil Procedure in the City Civil Court at Calcutta, thereby giving rise to Miscellaneous Case No. 92 of 2018. In the said proceeding, the petitioner canvassed her independent tenancy right by way of inheritance from the original tenant. It is alleged that the decree-holders/opposite parties obtained an eviction decree against one Idrish Ali Laskar, the present opposite party no. 8, describing the said judgment-debtor to be the sole heir of the original tenant.
In such proceeding, the petitioner made an application for stay of execution of the eviction decree. By virtue of the impugned order dated April 23, 2018, the executing court rejected the stay application itself on the sole premise that there subsists an order 2 by the Supreme Court directing evacuation from the shop room on or before April 30, 2018.
A copy of the said Supreme Court order has been annexed to the present revisional application and it is evident therefrom that such direction was only as against the judgment-debtor and does not bind the present petitioner, the latter having asserted independent tenancy right in respect of the suit property.
The decree-holders/opposite parties vehemently oppose the present revisional application and argue that the eviction decree was obtained against the opposite party no. 8 upon establishing beyond doubt that the suit property was sub-let to a third party. Moreover, it is argued that the petitioner failed to produce even a scrap of paper establishing her possession in respect of the suit property. Even the purported document to establish the petitioner's heirship, as annexed to this revisional application, is not at all a conclusive proof of such heirship according to the decree-holders/opposite parties.
It is further submitted on behalf of the decree- holders/opposite parties that only after long litigation they have been able to obtain an eviction decree and the petitioner is trying to stall its execution on frivolous ground.
It is evident from the impugned order that the only ground for refusal of stay by the executing court was the order of the 3 Supreme Court directing evacuation of the suit shop room on or before April 30, 2018. Since the said order binds only the judgment-debtor and cannot affect the present petitioner, being a judgment-resistor who has staked an independent claim to the suit property by virtue of inheritance from the original tenant, the trial court ought to have adverted to the averments in the application for stay as well as the original application under Order XXI Rule 101 of the Code of Civil Procedure and to have come to a comprehensive finding as to whether the petitioner has got a prima facie case to go for trial in Miscellaneous Case No. 92 of 2018 as well as whether the balance of convenience and inconvenience lay in favour of granting any stay, apart from applying the other yardsticks which are relevant in such adjudications.
Since no exercise of that sort has been undertaken by the executing court at all, C.O. No. 874 of 2018 is allowed by setting aside the impugned order and directing the executing court to dispose of the stay application filed by the petitioner in connection with Miscellaneous Case No. 92 of 2018, arising out of Execution Case No. 51 of 2000, afresh within ten days from the date of communication of this order to the executing court.
There will be an order of stay of all further proceedings in Execution Case No. 51 of 2000, arising out of Ejectment Suit No. 410 of 1978 pending before the Small Causes Court at Calcutta, 4 till May 16, 2018 or until disposal of the stay application, whichever is earlier.
It is made clear that while passing the order of stay, this court has not gone into the merits of the case and no observation made herein will affect the executing court while disposing of either the stay application or Miscellaneous Case No. 92 of 2018 itself, which would be disposed of on their own merits.
The decree-holders/opposite parties are permitted to file their written objection, if any, to the said application within three days from date with copy to the other side.
In view of the long agony of the decree-holders/opposite party nos. 1 to 6, it is expected that the executing court will make all endeavour to dispose of Miscellaneous Case No. 92 of 2018 as early as possible without granting any unnecessary adjournments to either party.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)