Calcutta High Court (Appellete Side)
Sri Jayanta Kumar Dutta vs Smt. Soma Ganguly & Anr on 6 May, 2015
1
In the High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side.
06.05.15
CO No.1237 of 2015 Sri Jayanta Kumar Dutta v.
Smt. Soma Ganguly & Anr.
Mr. Anit Rakshit Mr. Chandramala Mukherjee ... for the petitioner.
This revisional application is against the order dated January 20,2015 passed by the learned 5th Judge, Small Causes Court at Calcutta in Misc. Case No.105 of 2014. By the impugned order the learned Court below has in effect stayed the entire Ejectment Execution Case No.15 of 2006 arising out of Ejectment Suit No.176 of 2001.
Mr. Anit Rakshit, learned advocate appearing for the petitioner submits that the petitioner is the owner of the property situated at 18, Chandra Sur Lane, P.S.- Girish Park, Kolkata- 700 006 (the suit property). The petitioner filed an eviction suit being the Ejectment Suit No.176 of 2001 before the learned 5th Judge, Small Causes Court at Calcutta against the original tenant being the opposite party no.2 in this application. The opposite party no.2 had inducted various sub-tenants and other occupiers in the suit property. However, since the opposite party/defendant did not contest the said eviction suit, the same was decreed ex parte decree against the opposite party no.2/sole defendant. The opposite party no.2 filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, which according to Mr. Rakshit, was also dismissed and the revisional application filed by the opposite party no. 2 against the order of dismissal of the said application under Order 9 Rule 13 of the Code of Civil Procedure was also rejected by this Court.
2Thereafter, the petitioner filed an execution proceeding being Ejectment Execution Case No.15 of 2006 before the learned 5th Judge, Small Causes Court at Calcutta. By virtue of orders passed in the said execution proceeding out of eighteen rooms of the suit property the possession of only eight rooms could be recovered. Thus, execution proceeding in respect of the remaining ten rooms of the suit property is still pending. During pendency of the said proceeding the opposite party no.1 filed an application being Misc. Case No.105 of 2014 before the executing Court claiming to be a tenant and having independent right in respect of a portion of the said property. From the documents disclosed in this application it appears that before filing the said Misc. Case No.105 of 2014 the opposite party no.1 along with some other persons had filed a suit being Title Suit No.60 of 2007 before the City Civil Court at Calcutta and from the schedule to the plaint of the said suit it appears that the opposite party no.1 claimed to be in occupation of one room along with any bath and privy situated on the ground floor of the suit property being premises no.18, Chandra Sur Lane, Kolkata-700 006. By the impugned order the learned Court below has stayed the entire execution proceeding being Ejectment Execution Case No.15,2006. Stay of the entire execution proceeding by the impugned order, according to Mr. Rakshit, is patently illegal as at the highest the opposite party no.1 can claim to be in occupation of only one room of the ground floor of the said premises, she has no right to stay the execution proceeding in respect of the other nine rooms of the suit property.
Having considered the submissions of Mr. Rakshit and the records of the case, I am prima facie satisfied that the impugned order dated January 20,2015 passed by the learned 5th Judge, Small Causes Court at Calcutta in Misc. Case No.105 of 2014 is required to be stayed. Accordingly, there will be an order staying operation of the impugned order dated January 20,2015 passed by the learned 5th Judge, Small Causes Court at Calcutta in Misc. Case No.105 of 2014 till June 15,2015. In the meantime 3 the petitioner shall not execute the decree against the opposite party no.1.
Let this application appear in the list on May 12,2015. The petitioner is directed to serve a copy of this application together with a copy of this order on the opposite party no.1 as also on her advocate in the Court below. The petitioner shall file affidavit-of-service on the next date of hearing.
sh (Ashis Kumar Chakraborty, J)