Calcutta High Court (Appellete Side)
Suchitra Mitra vs Mantu Das & Ors on 20 December, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 Sn 20.12.19 C.O. 3979 of 2019 45 SUCHITRA MITRA VS. MANTU DAS & ORS.
Mr. Sourav Sen Mr. Partha Chakraborty Ms. Disha Shukla ..for the petitioner The petitioner is the defendant no.3/judgement debtor in Misc. Case No.29 of 2019 pending before the learned Civil Judge, Senior Division, Basirhat, North 24 Parganas. This was a suit for partition. By a preliminary decree dated March 25, 2008, the partition was decreed on contest against the defendant no.1 and ex parte against the rest of the defendants. Parties to the suit were allowed two months time to allot their respective shares by metes and bounds in terms of preliminary decree failing which, either party would file an application for appointment of pleader commissioner. Thereafter, on June 18, 2014, the partition commissioner allotted "B "schedule property to the plaintiffs. The learned Commissioner has also reported that the lot 'A'in green colour was allotted to the 2 plaintiffs and the rest of the portion of lot 'A' property demarcated by "B" remained unallotted.
It is the contention of the defendant no.3/judgemnet debtor that if the petitioner was allotted green coloured portion of lot 'A" property he did not have any objection to that.
Records reveal that the plaintiff filed an execution case No.1 of 2014. The defendant no.3 filed an application under Section 47 of the Code of Civil Procedure, inter alia, that the decree was not executable against the defendant no.3 and in the garb of decree the plaintiff was encroaching upon the land of the defendant no.3 and other portion of lot "A" lands which remained unallotted in terms of the report of the partition commissioner. The said application was rejected by an order dated September 27, 2014 passed by the learned Civil Judge, Senior Division, Basirhat, North 24 Parganas and a direction was issued upon the Basirhat Police Station and S.D.O., Barrackpore for implementation of the decree in Title Suit No.44 of 2006.
An arguable case has been made out by the 3 petitioner, inasmuch as, the preliminary decree did not reflect that any portion of the property of the defendant no.3 was to be recovered neither did the partition commissioner mention that the plaintiff was entitled to a portion of the property owned and occupied by the defendant no.3. The defendant no.3 accepts that the portion allotted to the plaintiff in the report of the partition commissioner was correct but during execution he came to know that the plaintiff was trying to encroach into the area in occupation of the petitioner/defendant No.3.
Service upon the opposite parties by speed post with acknowledgement due and affidavit of service to be filed on the next date.
Let this matter appear in the monthly combined list on February, 2020 under the same heading.
In the meantime, there shall be stay of all further proceedings in Title Execution No. 1 of 2014 pending before the learned Civil Judge(Senior Division) Basirhat, North 24 Parganas up to April 30, 2020.
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