Calcutta High Court (Appellete Side)
Sri Anil Kumar Vijayworgi vs Sri Ajay Jain & Ors on 29 March, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A.T. 1174 of 2014
with
CAN 2411 of 2016
Sri Anil Kumar Vijayworgi
versus
Sri Ajay Jain & Ors.
For the Appellant/Applicant: Mr. Jiban Ratan Chatterjee, Sr. Adv.,
Mr. Sandip Kumar Tiwari.
Heard On : 29-03-2016.
Judgement On : 29-03-2016.
Jyotirmay Bhattacharya, J. : This first miscellaneous appeal is directed
against an order dated 9th September, 2014 passed by the learned Chief Judge,
Small Causes Court at Calcutta in Misc. Case No. 1261 of 2014 arising out of
Ejectment Execution Case No. 81 of 2014 at the instance of the
objector/appellant.
Let us now consider as to whether the appeal is required to be admitted for
hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure
or not.
An eviction decree was passed in favour of the respondents/decree-holders
in an Ejectment Suit being Ejectment Suit No. 81 of 2013. The appellant claimed that though his father Narayan Das Vijayworgi was the tenant of the suit premises and on his death, the appellant inherited the said tenancy, but the landlords filed the said suit for eviction without impleading the heir of the original tenant as party in the said suit. The landlords filed the said suit by impleading the Administrator General of West Bengal as defendant in the said suit and obtained ex parte decree therein.
When the bailiff came to recover possession from the appellant, the appellant came to know about the said decree and then, he filed an application under Order 21 Rule 101 of the Code of Civil Procedure challenging the legality of the said decree and its executability against the heir of Narayan Das Vijayworgi, the appellant herein. The said miscellaneous case which was registered as Misc. Case No. 1261 of 2014 is still pending for decision.
The landlords/decree-holders also filed another miscellaneous case under Order 21 Rule 97 of the Code of Civil Procedure praying for police help in aid of execution of the said decree. The said application was registered as Misc. Case No. 1255 of 2014. Both the applications are pending for disposal.
The appellant herein filed an application for temporary injunction in connection with the Misc. Case being No. 1261 of 2014 seeking injunction for restraining the decree-holders/respondents from executing the said decree till the disposal of the said miscellaneous case. The learned Trial Judge rejected the appellant's said application for injunction. Hence, the instant miscellaneous appeal has been filed.
We have already recorded hereinabove that execution case has already been levied by the decree-holders/respondents. The said execution case has been registered as Execution Case No. 81 of 2014. Two miscellaneous cases have also been filed by the respective parties in connection with the said execution case. When admittedly the execution case has already been filed by the parties, the appellant, in our considered view, cannot even seek the relief for injunction as prayed for in his said application. As such, we are of the view that the learned Executing Court did not commit any illegality in rejecting the said application which is absolutely a misconceived application and was filed under wrong legal advice.
In our view, this is a case where the appellant should have prayed for stay of further proceeding of the execution case till the disposal of those two miscellaneous cases. Since no such application was filed, we do not find any justification to interfere with the impugned order.
The appeal, in our view, does not deserve any merit for consideration. We, thus, decline to admit this appeal for hearing.
It is made clear that if any application for stay is filed by the appellant before the learned Executing Court, the learned Executing Court will consider the same independently without being influenced by the order passed hereinabove.
Both the appeal and the application being CAN 2411 of 2016 are disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. ) dc.