Calcutta High Court (Appellete Side)
Smt. Aloka Bose & Anr vs Chandramouli Vithani on 10 January, 2020
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04,SL,Ct.18.
10.01.2020.
AJ.
C.O. 81 of 2020 Smt. Aloka Bose & Anr.
-Vs-
Chandramouli Vithani Mr. Ashim Ghosal, Mr. Sarbananda Sanyal.
... for the petitioners.
The revisional application under Article 227 of the Constitution of India is directed against the orders dated November 05, 2019 and December 11, 2019 passed by the 9th Court of the learned Civil Judge (Senior Division), Alipore in Title Execution Case No. 39 of 2018.
The petitioners filed Title Suit No. 102 of 2015 seeking eviction of the opposite party from the suit property inter alia on the ground of reasonable requirement. The said suit was decreed on contest on September 05, 2018. The said decree was put into execution giving rise to Title Execution Case No. 39 of 2018. The opposite party preferred an appeal against the said decree, which is pending before this Court being F.A.T. 531 of 2018.
The petitioners moved an application under Article 227 of the Constitution of India before this Court complaining that the opposite party is deferring the disposal of the said execution case on the ground of pendency of the said first appeal before this Court although there is no order staying the said execution case has been passed in the said appeal. 2
This Court disposed of the said application being C.O. 3000 of 2019 by the order dated November 04, 2019. The said order is reproduced below :-
"04.11.2019 (M/L-26) Ct.-14 (Susanta) C.O. 3000 of 2019 Smt. Aloka Bose & Anr.
-Vs-
Chandramouli Vithani Mr. Ashim Ghosal, Mr. Swapan Bhattacharya.
....... For the Petitioners Mr. S. Halder.
....... For the Opposite Party.
Affidavit-of-service filed in Court today be kept with the record. Mr. Ghoshal, learned Advocate appearing on behalf of the petitioners, submits that the grievance of the decree-holder/petitioner is that the disposal of the execution case levied by the petitioners for execution of the ejectment decree is being deferred on the ground of pendency of an appeal against the decree.
The pendency of the appeal against the decree will not automatically operate as stay of the execution case.
Mr. Halder, learned Advocate appearing on behalf of the judgment debtor candidly submits that no stay has been passed in the appeal against the decree under execution.
In view of such position of the matter, the 9th Court of learned Civil Judge (Senior Division) at Alipore is directed to proceed with the Title Execution Case no. 39 of 2018 expeditiously and to dispose it of within a period of six weeks from the date of communication of this order, if in the meantime, no specific order of stay is communicated to the executing Court.
With the above C.O. 3000 of 2019 is, thus, disposed of. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)"
The order of this Court dated November 04, 2019 was communicated to the executing Court by the petitioners on November 05, 2019 with a put up petition.
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The executing Court dismissed the said application. December 11, 2019 was a date fixed for hearing of the said execution case. On the said date an adjournment was sought for on behalf of the opposite party on the ground of pendency of the said appeal before this Court although no order of stay passed in the said appeal was communicated to the executing Court.
The learned Judge, in spite of noticing the direction passed by this Court on November 04, 2019 in C.O. 3000 of 2019, allowed such prayer of the opposite party for adjournment of the hearing of the said execution case.
The way the learned Judge has conducted the further proceedings of the execution case after communication of the said order of this Court prima facie appears in gross violation of the said order of this Court.
The learned Registrar (Judicial Service) is, therefore, requested to seek an explanation from the 9th Court of the learned Civil Judge (Senior Division), Alipore, district 24-Parganas (South) through the learned District Judge, Alipore, district 24-Parganas (South), as to the reason for conducting the further proceedings of the said execution case in the said manner, such report must reach to this Court by January 14, 2020.
Let the matter appear in the Supplementary List of January 15, 2020 under the heading "To Be Mentioned".
(Biswajit Basu, J.)