Calcutta High Court (Appellete Side)
Prafulla Kumar Ghosh vs Ananda Ghosh & Ors on 14 February, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 41 14.02.2017
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 4204 of 2016 Prafulla Kumar Ghosh
-Vs.-
Ananda Ghosh & Ors.
Mr. Pinaki Ranjan Mitra, Mr. Kaman Sahoo ...for the petitioner This revisional application is directed against the order dated August 31, 2016 passed by the learned Civil Judge (Junior Division), 4th Court at Howrah in connection with Misc. Case No. 91 of 2015, arising out of Title Execution No. 3 of 2012. By the impugned order, the learned Court below has rejected the application for execution of the decree passed by the learned first appellate Court in Title Appeal No. 49 of 2003, which was upheld by this Court in the second appeal. A Special Leave Petition against the decision of this Court in the second appeal was rejected by the Hon'ble Supreme Court, in Special Leave to Appeal (Civil) No. (s) 14171 of 2010.
From the affidavit of service filed on behalf of the petitioner, it appears that a copy of this revisional application has been forwarded to the opposite party no. 1, at whose instance the impugned order was passed by the learned Court below, but from the track report issued by the postal department it is not clear whether the said opposite party has received the copy of the application. Let, the said affidavit of service be kept on record.
2Mr. Mitra, learned advocate appearing for the petitioner not only drew my attention to the aforementioned decision of this Court and the Hon'ble Supreme Court but he also pointed out the decision of the Division Bench of this Court in the case of Profulla Kumar Ghosh vs. State & Anr., reported in 2013 (1)CLJ (Cal) 46. In the said decision, the Division Bench of this Court directed the Uttar Jhapordah Gram Panchayat to take a decision relating to the application seeking permission to construct a building/new structure in accordance with law and in the event no communication is made within the prescribed time limit from that date, the petitioner will be entitled to construct building following the building rule.
Having considered the materials on record, I find substance in the submission made on behalf of the petitioner that the learned Court has committed an error of law in passing the impugned order, thereby rejecting the execution application filed by the petitioner.
Accordingly, there shall be an interim order directing stay of operation of the impugned order dated August 31, 2016 passed by the learned Civil Judge (Junior Division), 4th Court at Howrah in Misc. Case No. 91 of 2015, arising out of Title Execution No. 3 of 2012 till the disposal of this application.
The petitioner is directed to once again forward a copy of this application, together with a copy of this order, to the opposite party no. 1 by speed post with acknowledgement due.
Let, this application appear under the heading "Contested Application under Article 227 of the Constitution" in the monthly list of April, 2017.
The petitioner shall file an affidavit of service on the next date of hearing.
3Urgent certified website copy of this order, if applied for, be made available to the petitioner upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)