Calcutta High Court (Appellete Side)
Sri Samir Kumar Pal And Another vs Bhaskar Sardar on 11 July, 2018
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon'ble Justice Sabyasachi Bhattacharyya C.O. No. 1639 of 2018 Sri Samir Kumar Pal and another vs. Bhaskar Sardar For the petitioners : Mr. Sayantan Bose For the opposite party : Mr. Hiranmay Bhattacharya, Mr. Tanmay Mukherjee, Mr. Sounak Bhattacharya.
Hearing concluded on : 03.07.2018 Judgment on : 11.07.2018 Sabyasachi Bhattacharyya, J.:‐
The present revision arises out of an order whereby all further proceedings of Title Execution Case No. 3 of 2016 pending in the First Court of Civil Judge (Senior Division) at Baruipur were stayed till disposal of Miscellaneous Case No. 13 of 2018, which was instituted by the present opposite party under Order XXI Rules 99, 101 and 103 read with Section 151 of the Code of Civil Procedure.
2. The petitioners instituted a suit under Section 6 of the Specific Relief Act, registered as Title Suit No. 38 of 2008, for recovery of possession of the suit premises. The said suit was initially dismissed on March 31, 2010. The petitioners moved a revisional application, bearing C.O. No. 1899 of 2010, against such dismissal, which was allowed by a co‐ordinate bench of this Court vide order dated April 8, 2011, remanding the suit for fresh hearing.
3. After remand, the suit was again dismissed on September 9, 2011, against which the petitioners preferred C.O. No. 3838 of 2011. The said revision was allowed by another co‐ ordinate bench of this Court on October 8, 2013 and the suit was again remanded for being heard afresh on the issues framed by this Court. The opposite party moved a special leave petition, bearing Special Leave Petition (Civil) No. 38039 of 2013, which was dismissed on March 18, 2016.
4. The suit was accordingly heard after remand again and was decreed on June 30, 2016.
5. The opposite party challenged the aforesaid decree for recovery of possession by preferring C.O. No. 4173 of 2016, which was dismissed on June 6, 2017 by a co‐ordinate bench of this Court. Against such dismissal of the revision, the opposite party moved Special Leave Petition (Civil) No. 35763 of 2017, which was also dismissed on February 12, 2018.
6. The petitioners also took out an application under Section 144(2) of the Criminal Procedure Code, 1973 on November 1, 2007. In such proceeding, the Officer‐in‐Charge, Canning Police Station filed a report. A report was also filed by the Block Land and Land Reforms Officer, Canning‐I, claiming that the relevant plot of land was under Khas Mahal Khatian No. 1042 and was a Government land. This prompted the petitioners to file Title Suit No. 21 of 2008 in the First Court of Civil Judge (Junior Division) at Baruipur, praying for declaration of title and ancillary reliefs. The said suit is still pending.
7. The petitioners, in the meantime, levied execution of the eviction decree passed in Title Suit No. 38 of 2008, thereby giving rise to Title Execution Case No. 3 of 2016. In the said execution case, April 2, 2018 was fixed as the date for delivery of possession with police help.
8. At this juncture, the petitioners claimed to have learnt that pursuant to a leave granted by the Hon'ble Supreme Court vide its Order dated February 12, 2018, the opposite party had filed a suit bearing Title Suit No. 25 of 2018, praying for declaration that the judgment and decree passed in Title Suit No. 38 of 2008 was a product of fraud. In the said suit, the opposite party filed an application for temporary injunction restraining the petitioners from disturbing the peaceful possession of the petitioners. A revisional application, bearing C.O. No. 743 of 2018, had also been filed by the opposite party, wherein an ad interim order of stay of all further proceedings of the aforesaid execution case was passed. Subsequently, the civil revision was disposed of on April 30, 2018, directing the Civil Judge (Senior Division), First Court at Baruipur to take up for hearing the injunction application of the opposite party. The petitioners filed their written objection in connection with the said injunction application and the said application was dismissed vide order dated May 3, 2018. By a judgment and decree passed on the same day, that is May 3, 2018, Title Suit No. 25, 2018 itself was also dismissed as not maintainable on the ground of constructive res judicata.
9. The petitioners thereafter applied for fixation of a date for delivery of possession and May 30, 2018 was fixed for such purpose. Such date, however, was postponed to June 5, 2018 at the behest of the Officer‐in‐Charge, Canning Police Station, who was unable to provide necessary police force required for executing the decree passed in Title Suit No. 38 of 2018.
10. Meanwhile, the judgment debtor / opposite party himself filed an application under Order XXI, Rules 99, 101 and 103 read with Section 151, of the Code of Civil Procedure, 1908, which was numbered as Miscellaneous Case No. 13 of 2018.
11. The opposite party also filed an application for stay of all further proceedings of the connected execution case, in the said miscellaneous proceeding.
12. The Executing Court, vide Order No. 37 dated June 4, 2018, passed an order staying all further proceedings in Title Execution Case No. 3 of 2016 till disposal of Miscellaneous Case No. 13, 2018.
13. The petitioners have preferred the instant revisional application against such order of stay.
14. The question raised by the decree holders/petitioners in the present revision, is as to whether the application under Order XXI, Rules 99, 101 and 103 of the Code of Civil Procedure was maintainable at the instance of the opposite party, who was not a stranger claiming independent right, but the judgment debtor himself. Consequently, the petitioners also argued that the stay granted by the impugned order ought not to have been granted, in view of such miscellaneous case itself being not maintainable.
15. Learned counsel for the petitioners places reliance upon the provisions of Order XXI Rules 97 to 101 of the Code to argue that there was no scope for the judgment debtor to take out an application under the said provisions. It was only a stranger to the suit who could agitate an independent right under the said provisions. Since the judgment debtor was bound by the decree, the scheme of the said provisions could not permit the judgment debtor to reopen the decree by filing such an application.
16. It was further submitted on behalf of the petitioners that in such view of the matter, the Executing Court acted without jurisdiction in passing an order of stay of execution perfunctorily, at the advanced stage where the decree holders/petitioners had already taken all steps to have the eviction decree executed with police help. It is submitted that the petitioners have suffered for an inordinately long period due to the dilatory tactics adopted by the judgment debtor/opposite party. This caused tremendous harassment to the petitioners as well as huge financial loss. The Executing Court, according to learned counsel for the petitioners, ought to have considered the prima facie case while granting such stay. It is contended that the opposite party had no locus standi to maintain the miscellaneous case itself, filed under Order XXI, Rules 99, 101 and 103 read with Section 151, of the Code of Civil Procedure. As a result, the prayer for stay ought to have been refused.
17. Replying to the arguments of the petitioners, learned counsel for the opposite party submitted that, although Rule 99 of Order XXI of the Code contemplated an application by a stranger to the suit, Rule 97 could very well apply to a judgment debtor as well. The phrase "is resisted or obstructed by any person", according to the opposite party, includes obstruction by the judgment debtor as well. Rule 98 of Order XXI of the Code, on the other hand, necessitates an adjudication under Rule 101 prior to passing an order of delivery of possession. Accordingly, it is argued, even the judgment debtor can maintain resistance to the decree on whatever grounds he chooses and it would be mandatory for the executing court to adjudicate such question prior to putting the decree holder into possession of the decretal property.
18. In this context, learned counsel for the judgment debtor/opposite party relies on certain judgments.
19. The first judgment cited by the opposite party is reported at (1995) 1 SCC 6 [Bhanwar Lal vs. Satyanarain and another]. It is contended by learned counsel for the opposite party that even a resistance at the instance of the judgment debtor has to be adjudicated upon under Order XXI Rule 101, since Rule 97 of the said order envisages that "any person", even including the judgment debtor, irrespective of whether he claims derivative title from the judgment debtor or sets up his own right, title or interest de hors the judgment debtor and resists execution of a decree, the Court, in addition to the power under Rule 35(3) of Order XXI, has been empowered to conduct an enquiry whether the obstruction by that person was legal or not.
20. Learned counsel for the opposite party next cites the judgment reported at (1997) 3 SCC 694 [Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another]. It is submitted that the said judgment laid down the proposition that the Executing Court must first adjudicate upon objections on merits under Rule 97(2), read with Rules 101 and 98 of Order XXI of the Code, instead of insisting upon first handing over possession.
21. The next judgment cited by the opposite party is reported at (1998) 3 SCC 723 [Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Another]. In the said judgment, the proposition laid down in Brahmdeo Chaudhary's case (supra) was reiterated.
22. The opposite party next cites the judgment reported at (2000) 10 SCC 405 [Anwarbi vs. Pramod D.A. Joshi and others]. It is submitted that the said citation was a further endorsement of the principle laid down in Brahmdeo Chaudhary's case (supra).
23. The last judgment cited on behalf of the opposite party is reported at (2002) 1 SCC 662 [N.S.S. Narayana Sarma and others vs. Goldstone Exports (P) Ltd. and others]. It was held in the said judgment that the Executing Court had jurisdiction to decide all questions raised by a complainant, including questions regarding right, title or interest in the decretal property, notwithstanding provisions of any other law to the contrary.
24. Relying on the aforesaid judgments, learned counsel for the opposite party argues that Rule 101 of Order XXI of the Code of Civil Procedure mandates all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 as well as Rule 99 to be determined by the Court. Rule 98, on the other hand, contemplates that an order for delivery of possession pursuant to a decree could only be passed 'upon the determination of the question referred to in Rule 101'. Since Rule 98 governs an application under Rule 97, the latter being filed by the decree holders for execution of the decree, it is mandatory upon the Executing Court to adjudicate all questions, of whatever colour, raised by a judgment resistor, stranger and judgment debtor alike.
25. In such view of the matter, it is argued, the Executing Court was justified in entertaining the miscellaneous case filed by the judgment debtor/opposite party and to grant stay of the execution in connection therewith.
26. Upon hearing the contentions of both sides, it is seen that the judgment debtor / opposite party raised certain questions in his application under Order XXI Rules 99, 101, 103, read with Section 151, of the Code of Civil Procedure (Miscellaneous Case No. 13 of 2018). It was contended in the said case, inter alia that the decretal property was a vested land owned by the State of West Bengal. It was further contended that the judgment debtor/opposite party was residing in the said property for more than fifty years continuously and uninterruptedly to the knowledge of all concerned, including the decree holder. The opposite party sought an adjudication on such questions in the miscellaneous case.
27. Hence, the questions which fall for consideration in the present revisional application are:
i. Whether the Executing Court was bound to enter into an elaborate enquiry as to the question raised by judgment debtor/opposite party in his application under Order XXI Rules 99, 101, 103, read with Section 151, of the Code of Civil Procedure or to have held the said application not maintainable on the threshold. ii. Whether the Executing Court was justified in passing an order of stay without adverting to the prima facie case of the judgment debtor, including the maintainability of the miscellaneous case itself.
28. To adjudicate the aforesaid questions, it would be necessary to consider the provisions of certain Rules of Order XXI of the Code of Civil Procedure. Those are set out below:
"35. Decree for immovable property. - (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession."
"97. Resistance or obstruction to possession of immovable property ‐ (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub‐rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication. ‐ (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub‐rule (2), ‐
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment‐debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment‐debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree‐holder or purchaser. - (1) Where any person other than the judgment‐debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession. - Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination, ‐
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined. - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
... ... ...
103. Orders to be treated as decrees. - Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."
29. A bare perusal of Rule 35(3) of Order XXI shows that if the person in possession, against whom possession is to be delivered, is bound by the decree, the Court, through its Officers, may, after giving reasonable warning as envisaged therein, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession.
30. On the other hand, Rule 97 provides for a decree holder to make an application complaining of any resistance to execution of the decree, upon which the Court would proceed to adjudicate upon such application in accordance with the provisions contained therein.
31. Rule 98 contemplates that the Court would pass orders directing the decree holder to be put into possession, upon determination of the questions referred to in Rule 101 and in accordance with such determination.
32. Rule 101 envisages that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding inter alia on an application under Rule 97, or their representatives, and relevant to the adjudication of the application, should be determined by the Court dealing with the application, and not by a separate suit. For such purpose, the Court, notwithstanding anything to the contrary contained in any other law, should be deemed to have jurisdiction to decide such questions.
33. The judgments cited by the opposite party are to be examined in the context of the aforesaid provisions. It was held in Bhanwar Lal's case (supra) that, in addition to the power under Rule 35(3) of Order XXI to direct delivery of possession against a person bound by the decree, the Executing Court was empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The obstruction itself would furnish a cause of action to file an application under Rule
97. In the said judgment, both the situations, where the judgment debtor himself or a derivative title holder from the judgment debtor, or a third party claiming independent right, resist the decree, have been dealt with.
34. The scope of Order XXI Rules 97 to 101 have been deemed as being "in addition to the power under Rule 35(3)" in the said judgment. It was laid down in the said judgment that Order XXI Rule 35(3) postulates that the person in possession of the immovable property to be delivered under decree must be per force bound by the decree.
35. The scope of enquiry in the said decision was restricted to whether the application filed by the decree holder under Order XXI Rule 35(3), against a third party in that case, was convertible to one under Order XXI Rule 97 of the Code. Within such ambit, the Hon'ble Supreme Court held that the Executing Court had power to enquire whether the obstruction was legal or not, in addition to the power under Rule 35(3). As such, the proposition espoused by the present opposite party, as to the judgment debtor being entitled to a full‐fledged enquiry under Rules 97, 98 and 101 of Order XXI was not laid down in the said decision.
36. In the case of Brahmdeo Chaudhary (supra), it was held by the Hon'ble Supreme Court that the Executing Court had to adjudicate upon the objection raised under Order XXI Rule 97(2) read with Rules 101 and 98 of the Code first, instead of insisting on first handing over possession. The context of the said judgment was resistance by a stranger to the suit and not the judgment debtor. As such, the said decision also does not come in aid of the present opposite party.
37. In the case of Silverline Forum Pvt. Ltd. (supra), it was held that the questions raised within the scheme of Order XXI Rules 97 to 101 of the Code were to be questions "legally arising" between the parties. It was held that no detailed enquiry might be necessary; if on averments/admitted facts, it was seen that the Registrar was bound by the decree, no further enquiry was necessary.
38. As such, this judgment rather contradicts the proposition of the opposite party and indicates that the scope of enquiry in an application filed by the Registrar/judgment debtor was confined to whether the judgment debtor was legally bound by the decree and no detailed enquiry would be necessary in such a case.
39. Considering the case of Anwarbi (supra), it is seen that the said judgment is virtually a reiteration of the proposition laid down in Brahmdeo Chaudhary's case (supra), and is not relevant to decide the instant lis.
40. As to the case of N.S.S. Narayana Sarma (supra), the same is patently distinguishable from the instant case. In the reported judgment, the resistors claimed independent rights which accrued much prior to the filing of the suit itself. However, in the present case, the resistor is the judgment debtor himself and is bound by the decree and his rights were crystallized in the eviction decree passed against him. As such, the proposition laid down in the said cited judgment could not be of any benefit to the opposite party in the present case. Rather, it was held in the reported judgment that the aim of enacting Rule 101 was to remove technical objections to applications filed by the aggrieved party and as such, to cut short litigation. The present opposite party seeks to defy the said principle in spirit by attempting to re‐open the decree itself.
41. To derive the intention of the legislature, as to the scope and extent of enquiry by the executing court permissible under Order XXI Rule 101 of the Code, regarding questions of right, title and interest raised by a judgment debtor, we have to synthesize the provisions of Rules 35, 97, 98 and 101 of Order XXI.
42. All the said Rules govern persons who resist execution of a decree for possession of immovable property.
43. Rule 35 (3) specifically deals with a 'person in possession' who, despite 'being bound by the decree', 'does not afford free access', the last phrase being essentially synonymous with providing "resistance or obstruction to possession of immovable property" as envisaged in Rule 97.
44. As such, the provisions of Rule 35 (3), which operate specifically in the field of persons in possession who are bound by the decree, have to be read into the scope of Rule 97, and consequentially Rules 98 and 101, for the purpose of ascertaining the scope of determination under Rule 101 in respect of persons who are "bound by the decree", as opposed to strangers to the decree who are not bound by the decree.
45. Rule 35 (3) is a special provision for persons who are bound by the decree but resist execution. It stipulates that when such persons do not afford access to the decretal property, the Court, through its officers, may remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree‐holder in possession. It is noteworthy that this provision is unfettered by any mandatory prior adjudication under Rule 101.
46. However, Rule 98 mandates that any order allowing an application under Rule 97 and putting the decree holder in possession or passing some other direction has to be passed "upon the determination of the questions referred to in rule 101". Rule 97 contemplates resistance or obstruction in obtaining possession by "any person", which may or may not include a person "bound by the decree".
47. Rule 101 envisages "All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application" to be determined by the Court dealing with the application, and not by a separate suit.
48. Hence, once resistance is offered and a question of right, title or interest in the property is raised by the resistor, it becomes the bounden duty of the executing court to adjudicate the said dispute first, before deciding an application under Rule 97 or Rule 99 and proceeding to pass necessary order of putting the decree holder in possession in terms of Rule 98 or Rule 100 respectively.
49. In case of strangers to the original suit/proceeding in which the decree was passed, and consequentially to the decree, the scope of adjudication has no fetters and all questions as to right, title and interest in the decretal property, which are raised by the resistor, have to be decided prior to passing an order for delivery of possession.
50. However, out of the genus of resistors, Rule 35(3) culls out as a species, those resistors who are bound by the decree. At first blush, judgment debtors and persons claiming through them come within the fold of Rule 35(3), which does not contemplate any adjudication under Rule 101 per se.
51. Yet, in view of there being scope of conflict between Rule 35 (3) and the scheme laid down in Rules 97 - 101 in respect of the sub‐set of persons bound by decree but not affording free access as contemplated in Rule 35(3), within the super‐set of resistors as contemplated in Rule 97, such conflict was resolved by harmonious construction in the cited judgments, by limiting the scope of enquiry under Rule 101, in case of persons bound by the decree as envisaged in Rule 35 (3), only to the question as to whether such persons were actually bound by the decree. Such harmonious construction also obviates the otherwise imminent conflict between the scheme of Rules 97‐101 and the well‐settled juristic principle, "the executing court cannot go behind the decree", as well as with the cardinal concept of jurisprudence, that when a judgment debtor is debarred by res judicata and/or constructive res judicata from re‐agitating issues decided, or which could be decided, in a previously decided suit, in a subsequent suit or proceeding, he/she could not be permitted to re‐agitate those issues in the execution of the same suit. Permitting the judgment debtor to do so, taking umbrage under Rule 101, would lead to an absurd interpretation of the said Rule, which ought to be avoided.
52. Viewed from another angle, even Rule 101 envisages questions which are "relevant to the adjudication of the application". As such, relevance vis‐à‐vis rights of a judgment debtor in an application under Rule 97 has to be confined to whether she or he is bound by the decree and cannot be enlarged further in scope.
53. As such, the only question which is to be decided under Order XXI Rule 101 of the Code in case of resistance being offered by a judgment debtor, or anybody claiming under him, is whether the resistor is bound by the decree. No elaborate enquiry is required in such cases and the entire question can be resolved even at a preliminary stage or at the inception, in the event the resistor is admittedly a judgment debtor and thus, by definition, bound by the decree.
54. Thus, upon a consideration of the relevant provisions and the cited judgments, it is evident that the only question to which the present enquiry under Rules 97 and 101 of Order XXI, raised by the judgment debtor/opposite party, is confined, is whether the judgment debtor/resistor is bound by the decree. If one takes into account the principle laid down in Silverline Forum (supra) the question to be adjudicated must be "legally arising between the parties". Since the judgment debtor/opposite party is bound by the decree, no detailed or further enquiry was necessary the moment the Executing Court finds that the judgment debtor is so bound.
55. The questions contemplated in Rule 101 are also restricted to only those questions which are relevant to the adjudication of the application, in the present case under Rule 97.
56. The limited scope of enquiry in the present case would be whether the opposite party/resistor was bound by the decree passed under Section 6 of the Specific Relief Act, 1963. Since the opposite party was admittedly the judgment debtor in such a suit, his being bound by such decree was a foregone conclusion. As such, the judgment debtor could not seek a detailed enquiry into the questions purportedly raised by him in the miscellaneous case, the moment it was seen that he was bound by the decree.
57. In such view of the matter, the present opposite party could not seek a detailed enquiry as to his purported rights as claimed in Miscellaneous Case No. 13 of 2018, since the opposite party is admittedly the judgment debtor and is bound by the decree of eviction passed under Section 6 of the Specific Relief Act, 1963. The questions purported to have been raised by the opposite party were not of such a nature that they could be said to be 'legally arising' between the parties, as contemplated in Silverline Forum Pvt. Ltd. (supra).
58. Even a bare perusal of the application under Order XXI Rules 99, 101, 103 read with Section 151, of the Code of Civil Procedure shows that the opposite party did not make out any independent title to the property, barring a flimsy, bald allegation as to being continuously and uninterruptedly being in possession of the suit property for more than fifty years to the knowledge of the decree holder. No details of commencement of such possession and/or of such continuance have been provided at all. The other purported contention in the said application was that the suit property was a vested land owned by the State of West Bengal. Taking umbrage under the alleged rights of the State would not absolve the judgment debtor from making out an independent title in the property for the purpose of wriggling out of the eviction decree passed against him. The contentions in the miscellaneous case, as such, are mostly moonshine and flimsy and are not sufficient to make out a prima facie case for the judgment debtor/opposite party to be favoured with an order of stay; more so, since the decree holders/petitioners have been deprived of reaping the harvest of the eviction decree passed in a proceeding under Section 6 of the Specific Relief Act, 1963, which was supposed to be of a summary nature, for an inordinately long period of time.
59. In the light of the above discussions, the Executing Court acted without jurisdiction in passing an unreasoned order of stay of the writ of execution of delivery of possession in connection with Title Execution Case No. 3 of 2016 till further orders.
60. Accordingly, C.O. No. 1639 of 2018 is allowed, thereby setting aside Order No. 37 dated June 4, 2018 passed by the Civil Judge (Senior Division), First Court at Baruipur, District: South 24 Parganas in Miscellaneous Case No. 13 of 2018, arising out of Title Execution Case No. 3 of 2016. The Executing Court is directed to proceed with the execution of the decree passed in Title Suit No. 38 of 2008, passed by the Civil Judge (Senior Division), First Court at Baruipur forthwith without granting unnecessary adjournments to either side.
61. There will be no order as to costs.
( Sabyasachi Bhattacharyya, J. )