Calcutta High Court (Appellete Side)
Sri Lokenath Ghosh vs Smt. Niva Roy (Behara) And Another on 21 November, 2017
1 21.11.2017
.
Item No. 28C.O. 3592 of 2017 Sri Lokenath Ghosh Vs. Smt. Niva Roy (Behara) and another.
Mr. Aniruddha Chatterjee, Mr. Surya Prosad Chattopadhyay.
... for the petitioner.
Mr. S. P. Lahiri.
... for the opposite parties.
This revisional application is directed against order no. 35 dated 4th September 2017 passed by the learned Civil Judge (Junior Division), 3rd Court, Serampore in Miscellaneous Case No. 11 of 2017 arising out from Title Execution Case No. 6 of 2016, by which an application for adjournment on the ground that the order of stay has been passed by the High Court in S.A. 131 of 2017 is rejected.
It is not in dispute that the tenant suffered a decree up to the appellate stage and filed the second appeal before this Court, which was admitted under Order XLI Rule 11 of the Code of Civil Procedure. An application for stay was taken out by the petitioner, which was disposed of directing the executing court not to proceed with the execution proceeding subject, however, to the conditions that the petitioner would deposit arrears of rent as well as the current occupational charges month by month till the disposal of the second appeal.
2The dispute appears to be over the deposit of arrears rent in terms of the order of this Court. According to the petitioner, he produced fourteen challans showing the deposits, whereas the opposite parties say that those deposits were made beyond the time indicated in the said order. Subsequently, the matter appeared before the Division Bench and according to the learned advocates, it has been clarified that all those deposits have been made in conformity with the order passed on the application for stay filed in connection with the second appeal.
The situation, which exits today, is that there is a subsisting order of stay and, therefore, the executing court cannot proceed with the execution case unless the default clause incorporated in the said order becomes operational.
The impugned order nos. 35, 36 and 37 dated 4th September 2017 and 6th November 2017 respectively are set aside.
The revisional application is allowed. There shall, however, be no order as to costs.
ab (Harish Tandon, J.)