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Calcutta High Court (Appellete Side)

Shankar Nath Bardhan & Ors vs Arabindo Burman on 26 March, 2013

Author: Sanjib Banerjee

Bench: Sanjib Banerjee

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                                                              C. O. No. 977 of 2013

                                                     Shankar Nath Bardhan & Ors.
                                                               Versus
                                                          Arabindo Burman
6.03.2013

Mr. Ayan Banerjee Mr. Indradeep Basu

--- for the petitioners.

The opposite party is not represented despite service.

The petitioners herein obtained a decree in a suit for eviction and the decree has been upheld by the Supreme Court. Upon execution being levied, the judgment-debtor applied under Order XXI Rule 97 of the Code. Such application has been dismissed and an appeal carried from the order. There is no stay of the execution proceedings in the appeal arising out of the order rejecting the judgment-debtor's application under Order XXI Rule 97 of the Code.

The grievance of the petitioners is that in the lower appellate court having called for the records of the execution proceedings, there is a virtual stay of the execution proceedings notwithstanding the judgment-debtor not satisfying the condition imposed for the stay of the execution proceedings.

CO No. 977 of 2013 is allowed by directing the Registrar (Administration) to ensure that the records relating to Ejectment Execution Case No. 66 of 2006 arising out of Ejectment Suit No. 846 of 1986 are de-linked from the papers relating to Misc. Appeal No. 35 of 2011 pending before the 8th Bench, City Civil Court. The Registrar (Administration) will require the lower appellate court to send down the papers relating to the execution proceedings as expeditiously as possible for the executing court to take steps in accordance with law.

In the event any application is made before the lower appellate court for stay of the execution proceedings, the lower appellate court will consider the matter only after giving due notice to the decree-holder.

The lower appellate court will ensure that the records relating to the execution case are sent down within a fortnight from date.

There will be no order as to costs.

Urgent certified photocopies of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.

(Sanjib Banerjee, J.) rnr.