Calcutta High Court (Appellete Side)
Santanu Kumar Dey vs Sanat Kumar Dey And Another on 19 September, 2019
1 S/L. 36.
September 19, 2019.
MNS.
C. O. No. 3257 of 2019 Santanu Kumar Dey Vs. Sanat Kumar Dey and another Mr. R. N. Dutt, Mr. Nirmalya Dasgupta, Mr. Anujit Biswas ... for the petitioner.
The present revision has been preferred at the instance of the decree-holder in a suit for partition in respect of a final decree passed in the said suit.
Learned counsel appearing for the petitioner argues that the executing court acted without jurisdiction in granting stay even for a limited period merely on the ground that the judgment-debtor had taken out an appeal before this Court, along with an application for condonation of delay in filing the said appeal along with an application for injunction.
Learned counsel for the petitioner relies on Order XXI Rule 22 of the Code of Civil Procedure to impress upon this Court that since the execution case was filed within two years after the date of the decree, no notice was even required to be issued on the judgment-debtor to enable the judgment-debtor to contest the execution case. As such, it is argued, that the executing court had no authority to grant such stay as done in the impugned order, at the instance of the judgment-debtor.
It is argued that it was only for the appellate court, in the event at all the appeal was admitted, to grant such a stay.
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Learned counsel for the petitioner also places reliance upon a judgment reported at (2013) 9 Supreme Court Cases 491 (Satyawati Vs. Rajinder Singh and another) for the proposition that in the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtained decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, it was held to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly.
This proposition was relied on by learned counsel to submit that the executing court acted palpably without jurisdiction in passing the impugned order of ad interim stay.
As far as the argument as regards Order XXI Rule 22 is concerned, it is evident that the said provision does not preclude the judgment-debtor to prefer an appeal against the decree, of which execution is levied and/or to participate in the execution proceeding as well. What is envisaged in the said provision is that when an application for execution is made within two years, apart from certain other circumstances, there is no need for the executing court to issue a notice to the person, against whom execution is applied, requiring him to show cause etc. Such notice was not even directed to be issued in the present case, since the execution case was filed within two years from the date of the decree. However, such provision cannot prevent the judgment-debtor from participating in the execution proceeding of its own, which has precisely been done in the present case. 3
Moreover, Order XXI Rule 26 of the Code of Civil Procedure empowers the executing court, upon sufficient cause being shown, to stay the execution of the decree for a reasonable time to enable the judgment-debtor to prefer a challenge to the court by which the decree was passed or any court having appellate jurisdiction in respect of the decree or the execution thereof, and to pray for an order of stay of the execution or for any other order relating to the decree or execution which might have been made by such court of first instance or appellate court if execution had been issued thereby or if application for execution had been made thereto.
The specific language of Order XXI Rule 26(1) of the Code empowers the executing court to grant stay for a limited period to enable the judgment-debtor to prefer an appeal, which is precisely what had been done in the present case.
As far as the judgment cited by learned counsel for the petitioner is concerned, the same arose out of an order passed by the executing court, whereby the executing court held, upon consideration of several reports, that the decree was not executable at all. Factually, as such, the said case was different from the present case, since the execution case itself was dropped, whereas in the present case it is at its inception stage and merely an ad interim limited stay has been granted. Moreover, in the said judgment, it was expressed by the Supreme Court that upon perusal of the reports the Supreme Court found that the local commissioner's report clearly described the land which admeasured eighty square yard and which was forming part of Khasra No. 95/24/2 and the report given by the local commissioner also gave details of the land-in-question by way of a sketch.
On the basis of such findings, the Supreme Court observed that, in the opinion of the said court, the executing court ought to have looked at the sketch, which was 4 prepared by the local commissioner and which was accepted as a correct sketch by the appellate court, while delivering the judgement by the trial court, which had become final.
The said judgment was rendered in the above factual scenario, which has no nexus with the context of the present case.
It is thus evident that the ratio laid down in the said judgment does not apply to the instant case at all, which revolves around the power of an executing court to permit the judgment-debtor to participate in an execution proceeding, despite such proceeding being filed within two years and the power of the executing court to grant limited stay of the execution case to enable the judgment-debtor to prefer an appeal.
In terms of the discussion made above, Order XXI Rule 26 of the Code fully empowers the executing court to pass such an order of stay.
Moreover, as also discussed above, Order XXI Rule 22 of the Code contemplates the issuance of notice for sufficient cause, in case of filing of the execution case beyond a period of two years, which in any event, does not preclude the judgment-debtor from participating in the execution proceeding of its own.
Accordingly, the executing court was justified in passing the impugned order of stay, that too for a limited period only.
As such, C. O. No. 3257 of 2019 is dismissed.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)