Calcutta High Court (Appellete Side)
Smt. Asha Pradhan vs Ratan Kumar Sonkar @ Ratan Lal Sonkar & ... on 23 July, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 07.13 ab C.O. 2469 of 2013 Smt. Asha Pradhan
-Vs-
Ratan Kumar Sonkar @ Ratan Lal Sonkar & Anr.
Mr. J. R. Chatterjee,
Mr. B. P. Sahoo,
Ms. Priyanka Bhutoria,
... for the petitioner
Mr. Prabir Kr. Mishra,
Mr. S. N. Chattopadhyay,
... for the opposite parties
Heard the learned advocates of both the sides.
This application is at the instance of the appellant and is directed against the order dated 21.03.2013 passed by the learned Chief Judge, City Civil Court at Calcutta in Miscellaneous Appeal No. 34 of 2012 thereby rejecting an application for stay.
In a suit for ejectment and recovery of possession, the plaintiffs/opposite parties herein got an ex parte decree and the said decree was put into execution. The said execution case being Ejectment Execution Case No. 48/08 is at the stage of consideration of the prayer for police help on an application being converted into Misc. Case No. 215/08 under Order 21 Rule 97 of the CPC. In the meantime, the appellant/petitioner herein preferred a misc. case under Order 9 Rule 13 of the CPC being Misc. Case No. 227/08 and that misc. case was dismissed on contests. Being aggrieved, the petitioner herein preferred an appeal being Misc. Appeal No. 34/12 and in connection with the said misc. appeal, he filed an application for stay of the execution case, which was rejected by the impugned order. So, this application has been preferred.
Having heard the learned advocates of both the sides and on perusal of the materials on record, I am of the view that the order of rejection of the prayer for stay cannot be sustained in view of the fact that the execution case is at the stage of delivery of possession with the help of police and if the decree is executed in any way, then the filing of the misc. appeal would be meaningless. So, I am of the view that the prayer for stay should have been considered by the lower appellate Court upon certain terms and conditions.
Upon hearing the learned advocates of both the sides, it appears that the extent of the accommodation of the petitioner in respect of the premises is 2 about 100 Sq. Ft. at New Market i.e. an important place in the city of Kolkata. Under such circumstances, the occupational charges to be determined subsequently by the Court below will be certainly high but in consideration of the financial position, upon hearing the learned advocates of both the sides, I am of the view that the prayer for stay would be allowed provided the petitioner herein deposits a sum of Rs. 50,000/- within two weeks from date.
Accordingly, there shall be an unconditional stay for a period of 15 days from date in respect of the execution case. Pending final determination of the occupational charges, if the said amount of Rs. 50,000/- is deposited within the aforesaid period of two weeks, there shall be stay of the execution proceedings till the disposal of the misc. appeal.
The petitioner is, therefore, directed to deposit the said occupational charges for the time being in the execution case accordingly. The prayer for stay is granted under the above terms and conditions. The impugned order is, therefore, set aside so far as the stay matter is concerned.
If no deposit is made within the aforesaid period, it shall be deemed that the order of misc. appeal relating to stay shall sustain.
The revisional application is disposed of to the extent indicated above. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties at an early date.
(Prasenjit Mandal, J)