Calcutta High Court (Appellete Side)
Bimal Krishna Mondal vs Nirmal Kumar Bachar on 20 July, 2015
Author: Harish Tandon
Bench: Harish Tandon
1 20.07.2015
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Item No.5 C.O. 630 of 2015 Bimal Krishna Mondal Vs. Nirmal Kumar Bachar.
Mr. Alok Roy Chowdhury, Mrs. Mahyua Dutta.
... for the petitioner.
Mr. Probal Kumar Mukherjee, Ms. Chandana Ghosh, Mr. Kanak Kiran Bandyopadhyay.
... for the opposite party.
This revisional application is directed against order no. 3 dated 16th January, 2015 passed by the learned Additional District Judge, 1st Court at Bongaon, North 24-Parganas in Title Appeal No. 21 of 2014, by which an application for stay is rejected.
From the impugned order it appears that the stay is refused on two fold grounds; firstly, that it is a declaratory decree. Therefore, there is no occasion to put the same into execution and secondly, the application for stay is bereft of any statement on irreparable loss and injury if the stay is not granted.
My attention is drawn to a decree assailed before the Court of Appeal below, wherefrom it appears that it is not a simplicitor decree for declaration of title. The Trial Court also passed a permanent injunction, which is capable of execution under Order XXI Rule 32 of the Code of Civil Procedure. Therefore, the first 2 point taken by the Trial Court that it is a simplicitor decree for declaration is factually incorrect.
Paragraphs 5 to 8 of the stay application contains the averments relating to an irreparable loss and injury and the sufferance, which the petitioner could make in the event the stay is not granted.
On both the grounds, this Court finds that the order impugned is not sustainable. The Court of Appeal below has proceeded to reject the stay application with close mind without venturing into the merit of the stay application.
Mr. Probal Kumar Mukherjee, learned senior advocate appearing on behalf of the opposite party, further informs the Court that no opportunity to file objection to the said application was given to his client and it is only on the oral submission made in this regard was considered by the Court of Appeal below while proceeding to dismiss the stay application.
Since the impugned judgment has a serious civil consequence, this Court does not find that there is any difficulty in taking out an application for stay before the Appellate Court.
The Court of Appeal below has not entered into the merit of the said application and, therefore, this Court feels that the matter should be remitted back to the Court of Appeal below for fresh consideration of the stay application on merit.
The impugned order is, thus, set aside.
3The plaintiff/opposite party is directed to file objection to the stay application within a week from date, which is mandatory and peremptory; reply thereto, if any, shall be filed within three days thereafter and the Court of Appeal below shall dispose of the said application afresh within two weeks from the date of expiration of the period provided for exchange of affidavits in accordance with law.
The Court of Appeal below shall consider the matter independently without being influenced by any observation made herein above or the fact that this Court has initially passed an order of stay in the revisional application.
The revisional application is, thus, disposed of.
There shall, however, be any order as to costs.
ab (Harish Tandon, J.)