Calcutta High Court (Appellete Side)
Kamalesh Adak And Another vs Somnath Chakraborty And Others on 28 July, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
1 6 Suman 28.07.16 C.O. 1949 of 2016 Kamalesh Adak and another Vs. Somnath Chakraborty and others Mr. Dhiraj Trivedi Mr. Pankaj Ladia ...for the petitioner This civil revisional application has been filed against order No.30 dated 08.04.2016 passed by learned Judge IV Bench, Presidency Small Causes Court at Calcutta in Ejectment Execution Case No.1081 of 2014 arising out Ejectment Suit No.8 of 2013 and in connection with the order No.28 dated 19.04.2016 passed by this learned Judge in Miscellaneous Case No.271 of 2015 arising out of Ejectment Suit No.7 of 2013.
The petitioner put an execution to the decree of eviction against the opposite party defendant dated 01.04.2014 passed in Ejectment Suit No.8 of 2013. When the decree was in the process of execution there was resistance by the defendant and his men and agent. Police help was sought for as there was resistance in the matter of execution of the decree. Ex parte order was passed in favour of the petitioner on 28.07.2015 and the police report was submitted in this regard on 30.07.2015. without the help of the police it was not possible for execution of the decree. So, the petitioner as decree holder filed an application under Section 151 of the Code of Civil Procedure for arrangement of police 2 force and accordingly the said application was allowed on 26.08.2015. Thereafter the judgement debtor entered appearance on 04.09.2015 and filed a Miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure with an application under Section 5 of the Limitation Act with a prayer for condonation of delay in institution of the case for setting aside the decree ex parte and the opposite party prayed for stay of the execution which was rejected on 24.02.2016. Then the judgment debtor /opposite party preferred a revisional application before a Single Bench of this Hon'ble Court in C. O. No.1124 of 2016 which was disposed of with direction to the learned Court below to dispose of the application under Section 5 of the Limitation Act within a month from the date of the order passed on 01.04.2016 and since a threat of dispossession by way of police help was there, the Hon'ble Court was pleased to give liberty to the judgement debtor to file a stay application afresh before the Executing Court and to dispose of the same within a month from the date but in any case the application under Section 5 of the Limitation Act has to be disposed of within a month from the date.
Learned Counsel appearing for the petitioner invites my attention to Order 30 dated 08.04.2016 passed in Execution Case No.1081 of 2014 to the fact that the learned Trial Court was well in the knowledge of the direction so made by the Single Bench of this Hon'ble Court but the said direction in its letter and spirit has not been adhered to. On the contrary, since the Miscellaneous Case is pending under Order 9 Rule 13 of the Code of Civil Procedure, the learned Trial Court stayed the proceeding of the execution but has not disposed of the application under Section 5 of the Limitation Act which arose out of Miscellaneous case under Order 9 Rule 13 of the Code of Civil 3 Procedure, so filed by the judgment debtor. Accordingly, an appropriate order has been prayed before this Court by the learned Counsel for the petitioner for direction to the Trial Court to dispose of the application under Section 5 of the Limitation Act and so also the Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure as expeditiously as possible. Since the ex parte order of eviction was passed in favour of the petitioner and a Miscellaneous case under Order 9 Rule 13 is pending, it is obviously expedient on the part of the Trial Court to stay the execution till the disposal of the said Miscellaneous Case but that must be taken up as expeditiously as possible.
In the context mentioned above in order to comply with the order as passed in C.O. 1124 of 2016 the learned Trial Court must understand that the order of the Court has to be complied with its letter and spirit and this Court once again direct that the application under Section 5 of the Limitation Act together with Order 9 Rule 13 be disposed of as expeditiously as possible preferably within one month from the date of receipt of the order.
Accordingly, the revisional application is disposed of. There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Shivakant Prasad, J.) 4