Calcutta High Court (Appellete Side)
3039/2012 on 2 December, 2013
Author: Asim Kr. Mondal
Bench: Asim Kr. Mondal
2.12.13 C.O 3039 of 2012
sk.
Mr. Abhijit Roy
....For the petitioner.
Mr. Abhijit Roy, learned Advocate appears on behalf of the petitioner.
In spite of service of notice/copy of the application, nobody is appearing on behalf of the opposite parties. None appeared of the opposite parties to pray for accommodation.
Under such circumstances, the revisional application is taken up for hearing.
The petitioner is the opposite party no. 1/decree holder in a Misc. Case being No. 129 of 2012 arising out of Ejectment Execution Case No. 56 of 2012. The case of the petitioner is that the petitioner being the landlord filed Ejectment Suit No. 526 of 2004 against one Amit Ghosh, opposite party no. 2/judgment debtor. The ground of the said ejectment suit was for reasonable requirement as well as subletting.
The learned Trial Court decided both the issues in favour of the landlord. The suit was decreed against the said decree holder. No appeal has yet been preferred. The decree was put in execution being Execution Case No. 56 of 2012. In the said execution case the opposite party no. 1, Smt. Mira Mitra filed one application under Section 151 of the Civil Procedure Code praying for stay of the execution case.
The learned Executing Court by Order No. 5 dated July 19, 2012 allowed the prayer for stay under Section 151 of the Civil Procedure Code unconditional for a period of three months i.e. till November 16, 2012 and ultimately extended to 11.12.2013.
The learned Advocate appearing on behalf of the petitioner submits that in the original judgment in the ejectment suit under issue no. 7 page 52 of Annexure "A" the learned Trial Court decided that Samir Mitra is a sub-tenant under the defendant/Amit Ghosh. Samir Mitra is the husband/opposite party no.1 of this revisional applicant. The opposite party no. 1 is the sister of Amit Ghosh.
It is submitted that in collusion with each other they have come to frustrate the decree obtained by the landlord on the ground of reasonable requirement and subletting.
The learned Advocate for the petitioner submits that it is the settled principles of law that once notice has been served upon one of the co-tenants. It will necessary to serve upon the other co-tenants, it is further submitted that though it is not admitted that the opposite party no. 1, Mira Mitra is the co-tenant for the sake of argument.
In the circumstances, the law has changed under the views of the Hon'ble Apex Court and its settled principles of law that co-tenant is not required to be served. Learned Advocate further submits that nowhere in the original pleading of the tenant, Mira Mitra has stated that as co-tenant this is nothing but to delay the proceeding of execution as well as to frustrate the same.
Learned Advocate for the petitioner submits that in the order impugned, there is no reason assigned as to why the stay was granted. The said order of granting stay without any condition which is not ought to have been done.
Learned Advocate relied upon by cited one decision of this Court passed by one of the Division Bench (not reported).
The photocopy of the said judgment is handed over to this Court. From the photocopy of the judgment, it appears that the Hon'ble Division Bench of this Court relied upon the decision of the Apex Court and opined that the notice upon the co-tenant is not required to be served in the even notice has properly served upon one of the co-tenants.
"S.A.T. 307 of 2011 with CAN 6170 of 2012".
Considered the submissions of the learned Advocate for the petitioner. Perused the order impugned passed by the learned Executing Court.
It is true that in the application under Section 151 of the Civil Procedure Code, the petitioner, Mira Mitra prayed for stay of the execution case claiming herself to be one of the co-tenants.
Photocopy reveals that nowhere in the original pleadings of the ejectment suit, the defendant/tenant has described said Mira Mitra as co-tenant. The Executing Court did not consider this aspect while granting stay of the execution proceeding.
In fact, the petitioner, Mira Mitra is a third party and she was not impleaded in the suit as party at any point of time either in the capacity of co-tenant or as subletting tenant.
Therefore, I have no hesitation to hold that the order impugned is not proper and legal and is required to be set aside.
Thus, the order No. 5 dated July 19, 2012 passed in Misc. Case No. 129 of 2012 arising out of Ejectment Case No. 56 of 2012 passed by the Judge, 3rd Bench, Small Causes Court at Calcutta is hereby set aside.
Thus, the revisional application is allowed without costs. Urgent photostat certified copy of this order, if applied for, be given to the petitioner on priority basis.
(Asim Kumar Mondal, J).