Calcutta High Court (Appellete Side)
Jayanta Kumar Dutta vs Soma Ganguly & Anr on 29 June, 2015
1 16. 29.06.2015
mb In the High Court At Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 1237 of 2015 Jayanta Kumar Dutta
-Vs.-
Soma Ganguly & Anr.
Mr. Anit Kumar Rakshit, Mr. Sankar Kumar Bose, Ms. Chandramala Mukherjee ......for the petitioner Mr. Partha Pratim Roy ......for the opposite parties This revisional application at the instance of the petitioner/decree holder is against the order dated January 20, 2015 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta in Misc. Case No. 105 of 2014. In Ejectment Suit No. 176 of 2001 the petitioner has obtained a decree passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta for eviction of the opposite party no. 2 from the suit property, situated at 18, Chandra Sur Lane, P.S. Girish Park, Kolkata, which is binding upon the opposite party no. 2 and the sub-tenants inducted by him. The petitioner filed an execution proceeding, being 2 Ejectment Execution Case No. 15 of 2006 before the learned Judge, 5th Bench, Small Causes Court at Calcutta. By virtue of orders passed in the said execution proceeding, out of the eighteen rooms of the suit property, the possession of only eight rooms has been recovered. Accordingly, the said execution proceeding in respect of the remaining ten rooms of the suit property is still pending. During pendency of the said execution proceeding, the opposite party no. 1 filed an application, being Misc Case No. 105 of 2014, before the executing court claiming to have an independent right in respect of one of the rooms of the suit property described in the Schedule to the said application. While the claim of the opposite party no. 1 in the said Misc. Case No. 105 of 2014 is restricted to only one room on the ground floor of the suit property described in the Schedule to the said application, by the impugned order, the learned Court below has stayed the entire execution proceeding being Ejectment Execution Case No. 15 of 2006. On May 06, 2015 an order was passed in this application directing stay of operation of the impugned order dated January 20, 2015 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta in Misc Case No. 105 of 2014 till June 15, 2015 and the petitioner was restrained from executing the eviction decree against the opposite party no. 1. The said interim order was extended from time to time and the same is valid till the end of June, 2015. 3 A copy of this application was served upon the opposite party no. 1 and Mr. Roy appeared for the opposite party no. 1. In his usual fairness, Mr. Roy did not dispute that the claim of the opposite party no. 1 in the said Misc. Case No. 105 of 2014 is restricted to only one room described in the Schedule to the said application and that the opposite party no. 1 is entitled to proceed with his claim in the said Misc. Case No. 105 of 2014 in respect of the said one room.
Mr. Rakshit appearing for the petitioner submitted that even if it is held that the opposite party no. 1 is entitled to proceed with the said Misc. Case No. 105 of 2014 before the learned Court below, the impugned order passed by the learned Court below staying the entire Ejectment Execution case no. 15 of 2006 cannot be sustained.
After considering the submissions made by Mr. Rakshit and Mr. Roy appearing for the respective parties of this application and the records of this case I find substance in the submission of Mr. Rakshit.
Accordingly, the impugned order no. 178 dated January 20, 2015 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta in Misc. Case No. 105 of 2014 is set aside. However, this order shall not stand in the way of the learned Judge, 5th Bench, Small Causes Court at Calcutta to pass any fresh 4 order in Misc. Case No. 105 of 2014 to protect the right and interest of the opposite party no. 1 in respect of one room described in the Schedule to the Misc. Case No. 105 of 2015 after hearing the objection of the plaintiff-decree holder. With the aforesaid direction, this revisional application, being C.O. 1237 of 2015 stands disposed of.
There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
(Ashis Kumar Chakraborty, J.)