Calcutta High Court (Appellete Side)
Chandualal Bagree vs Daudayal Kothari & Ors on 6 November, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Mir Dara Sheko
C.O. 1666 of 2016
Chandualal Bagree
-Versus-
Daudayal Kothari & Ors.
For the Petitioner : Mr. M.S. Tiwari
Mr. V.K. Tiwari
For the Opposite Parties : Mr. Arun Kumar Sharma
Ms. Swati Sharma
Judgment on : November 06, 2017
1.Heard Mr. M.S. Tiwari, learned Advocate, being assisted by Mr. V.K. Tiwari, learned Advocate representing the petitioner/judgment debtor. Heard also Mr. Arun Kumar Sharma, learned Advocate, being assisted by Ms. Swati Sharma, learned Advocate representing the opposite parties/decree holder.
2. Mr. Tiwari criticised the impugned order dated February 16, 20`16 passed by the learned Judge, 4th Bench, Small Causes Court, Calcutta in Ejectment Execution Case No. 63 of 2013 with prayer to set aside the same, since according to him, the same is illegal and perverse, as it has violated the provisions laid down under Order 21 Rule 22 of the Code of Civil Procedure. He submitted that the opposite parties filed the ejectment suit, which was decreed in the year 2005. Being 2 aggrieved the petitioners though preferred appeal and the same is pending but since the opposite parties had put the said decree of ejectment suit of 2005 into execution in the year 2013 without service of notice as laid down under Order 21 Rule 22 of the Code and therefore the order impugned rejecting the application of the petitioner for staying execution proceeding is bad in law.
3. Mr. Tiwari further submitted, when there was a mandate of the provision that if the decree would be put into execution after more than two years then notice to show cause against the judgment debtor would be a must, and, if the same could not be complied with, there would be the violation and this Court, should requires interference to set aside the said order.
4. Mr. Sharma apprised the Court that both the parties had been residing in the self-same suit building as would be evident from the address available from the cause title of the application. Though against the decree of eviction passed in 2005, appeal was preferred by the petitioner/appellant/defendant/judgment debtor in the year 2005, after about four years the appeal was dismissed for default in the year 2009. For its restoration though one misc. case was preferred in the same year 2009 but the same was again dismissed for default, and, on restoration of such misc. case the earlier misc. case for restoration of the appeal remained still pending and in such manner the appeal was kept pending.
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5. Mr. Sharma by inviting attention to the provision laid down under Order 21 Rule 22(2) of the Code tried to impress upon that if there would remain reason to the satisfaction of the Court then question of service of notice to show cause under Rule 22(1) would not be a bar upon the Court to proceed with the execution, if it would be pressed.
6. It appears from the impugned order that upon hearing learned Executing Court had given some observations, which are set out hereunder :-
"Though the main case is still pending, there is no specific stay order from appellate Court in c/w this Ex Case 63/ 13. Under such state of affairs, at this stage, I find no justification to allow the prayer of Jdr for staying the Ex 63/13. Hence, the petn. Dated 15.6.15 filed by Jdr. Is hereby rejected on contest but without any order as to costs. I find no impediment, at this stage to proceed with Execution Case."
7. From the cause title of the application filed by the petitioner it reveals that the address of the parties is the same and identical. The fact was well known to the petitioner that he had suffered already by a decree of ejectment of the year 2005 and though he had preferred the appeal uptil now the said appeal could not be made heard on merit. Rather in between, the said appeal was dismissed for default and even the application bearing the prayer for restoration of the appeal was also dismissed for default. Latches and laxities, or, negligence or lack of vigilance in 4 the matter of taking appropriate steps by the petitioner would be apparent in view of above checkered history.
8. Be that as it may, admittedly in the case in hand when no notice was served under Order 21 Rule 22(1) of the Code then question came whether the same would come as a bar to proceed with the execution case which was filed sometimes in the year 2013?
9. It is obvious that purpose of sending notice to a litigant of the proceeding is to make himself/herself aware about the legal steps as proposed to have been taken by his/her opponent so that the otherwise would not be surprised about the action proposed to have been taken by the former. In the case on hand, the judgment debtor was well aware about the existence of the decree of ejectment existing as against him. He was also well aware that he had taken step to get such decree set aside but it was not possible as yet, rather, to get it heard on merit was lying far away since the misc. case for restoration of appeal is yet to be disposed of. Therefore, only intention of the petitioner can be well read which is to defer the usufructs of the decree of ejectment as far as it would be possible by the act and action of his improvised brain. The Court is to render justice and should not be an onlooker simplicitor feeling helpless in view of the laxity and latches for which on 5 and again the appeal is being derailed from not being heard on merit, and, which is still lying at the stage of restoration.
10. However, the Rule 22(2) of the Code therefore has been intentionally legislated so that the Court in appropriate situation can proceed with the execution of decree without notice to show cause prescribed under Rule 22(1) of the Code. Therefore, in the instant case taking note of the facts and circumstances this Court in exercise of judicial review does not find any illegality or perversity in the impugned order dated February 16, 2016 by which the petition dated June 15, 2015 filed by the judgment debtor was rejected on contest without costs.
11. Therefore, upholding the said order dated February 16, 2016, the revisional application, being C.O. 1666 of 2016 stands dismissed with cost of Rs. 5,000/- payable by the petitioner before the learned Executing Court within a period of two months from this day, or else, the opposite parties/decree holders may take appropriate steps for its realisation.
12. Be it mentioned, that since it has been apprised that the appeal against the eviction decree is yet to be restored and if it is restored the same is supposed to be heard on merit, learned Lower Appellate Court accordingly in that event is 6 directed not to be swayed by or influenced with any observations made by this Court in this application, being C.O. 1666 of 2016 while disposing of the appeal.
13. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Mir Dara Sheko, J.) akb.