Calcutta High Court (Appellete Side)
3104/2013 on 10 September, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 0.9.1329
pg C. O. No. 3104 of 2013 In Re: Sheo Sharan Roy @ Shew Sharan Roy .. Petitioner.
Mr. Sabyasachi Bhattacharya, Mr. Intikhab Alam Mina .. For the Petitioner.
Mr. Amitabha Mukherjee, Ms. Atraye Dey (Ganguly) .. For the Opposite Party.
Heard learned advocates for both the sides.
This application is at the instance of the judgment debtor/petitioner and is directed against Order No. 10 dated 3 August, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court at Sealdah, South 24-Parganas rd in Ejectment Execution Case No. 9 of 2014 arising out of Ejectment Case No. 121 of 2011.
By the impugned order the learned Trial Judge has set aside the order of stay passed on 21st June, 2013 in the said execution with costs. Being aggrieved, this application has been preferred.
Having heard the learned advocates for both the sides and on perusal of the materials on record, I find that by setting aside the order of stay dated 21st June, 2013, the learned Trial Judge had committed a gross mistake.
From the Order No. 6 dated 21st June, 2013 passed by the learned Executing Court in Ejectment Execution Case No. 9 of 2013, I find that after appearance the judgment debtor filed an application for stay of all further proceedings of the execution case on the ground that he has filed a misc. case under Order 9 Rule 13 of the Code of Civil Procedure being Misc. Case No. 21 of 2013 for setting aside the ex parte decree suffered by him. While dealing with the said application, the learned Executing Court has fixed the next date on 6th July, 2013 for hearing the application for stay. He has also directed the decree holder to file a written objection, if any, in the mean time and the interim order of stay has been granted till date, i. e., 6th July, 2013. Then on 6th July, 2013 the matter came up for hearing in presence of both the parties and judgment debtor prayed for extension of the interim order and the decree holder filed a written objection to the application for stay. Accordingly, the learned Executing Court fixed the next date on 31st August, 2013 for hearing the application for stay. but it is unfortunate to note that on an off day, i. e., on 11th July, 2013 at the instance of the decree holder the learned Executing Court shifted back the date of hearing to 18th July, 2013 in the absence of the judgment debtor and thereafter the impugned order has been passed.
The impugned order does not disclose any reason why the application for stay has been rejected. As noted above since the misc. case is pending, unless stay is granted, the filing of the said misc. case may be frustrated and the petitioner may suffer irreparable loss if the decree is executed as the writ of delivery of possession has already been issued by the impugned order. This being the position, the impugned order cannot be sustained Therefore, the application is allowed. The impugned order is hereby set aside.
2The learned Executing Court is directed to hear out the application for stay afresh in presence of both the parties and the same shall be disposed of within a period of two weeks from the date of communication of the order.
In order to facilitate the hearing of the application for stay and to prevent execution of the writ of delivery of possession as issued by the impugned order, there shall be an unconditional interim stay for a period of two weeks hence and in the mean time the parties are at liberty to move before the Executing Court for early hearing of the application for stay.
Urgent photostat certified copy of the order, if applied for, be supplied to the learned advocates for both the sides as early as possible.
(Prasenjit Mandal, J.)