Calcutta High Court (Appellete Side)
1469/2012 on 12 April, 2013
Author: Subal Baidya
Bench: Subal Baidya
1 12.04.2013
pk C.O. No. 1469 of 2012 In Re:- Ashim Paul & Ors.
Defendants/Petitioners Mr. Pradyut Kumar Nandy, Mr. Sudip Kumar Datta for the Defendants/petitioners Heard the learned Counsel for the petitioners. The learned Counsel for the petitioners by filing a letter dated 12.04.2013 submitted that in this case a Caveat has been filed and pursuant to that he wants to move this revisional application this day and as such he attempted to serve the said letter of notice to the learned Counsel of the Caveator. The learned Counsel for the petitioners submitted that the learned Counsel of the Caveator reported him that the brief has been taken away from him by the party and as such he is not interested at all in this matter. The letter filed in court be kept with the record.
The learned Counsel for the petitioners further submitted that the caveat has been filed on 25.04.2012 and as per law it remains valid only for 90 days.
He further submitted that 20th April 2013 has been fixed for hearing the Misc. Case instituted on the basis of the application under Order 21 Rule 97 of the C.P.C. He also submitted having such urgency if he is not allowed to move this application, his client will be prejudiced highly.
In view of the urgency and the facts as aforesaid, this revisional application is taken up for hearing. Perused the revisional application and the documents annexed thereto.
2It is submitted by the learned Counsel for the petitioners that he is the tenant/defendant in the court below and there occasioned a communication gap between his clients and the concerned learned Counsel and as a result due to the absence of the defendant-tenant the Eviction Suit filed against the defendants was decreed ex parte and against that order the present petitioners-defendants filed a Misc. Case under Order 9 Rule 13 of the C.P.C. before the said learned court. He also submitted that in the meantime the opposite parties-plaintiffs filed Execution case on the basis of the said ex parte decree passed in Ejectment Suit No. 83 of 2006 and in connection with that Execution Case, the opposite parties-plaintiffs filed the application under Order 21 Rule 97 of the C.P.C. praying for police help for execution of the decree although the Misc. case arising out of Order 9 Rule 13 of the C.P.C. filed by the present petitioners-defendants is still pending. He also submitted that the present petitioners filed an application in the said Execution case, staying further proceeding of the said Execution case till the disposal of the Misc. case filed by him under Order 9 Rule 13 of the C.P.C. but that prayer for stay has been turned down by the learned court below by the impugned order dated 05.03.2012 and being aggrieved by that order, the present petitioners-defendants has come up before this court.
Going through the impugned order and the application and other materials it appears to me that the petitioners-defendants has made out a prima facie case for getting an order of interim stay.
Accordingly, there shall be an interim order of stay of all further proceeding of the Misc. Case No. 72 of 2010, pending before the Learned Civil Judge, Junior Division, 3rd Court at Sealdah for a period of four weeks.
3
The petitioners is directed to take steps for service of notice upon the opposite parties and the service to be effected by Registered Speed Post with A.D. within one week hence and the affidavit of service be filed at the time of hearing.
Matter to be listed three weeks hence under the heading "Contested Application".
Office is directed to supply urgent xerox certified copy of this order to the parties, if applied for, as early as possible.
(Subal Baidya, J.)