Calcutta High Court (Appellete Side)
Sri Amitava Mitter And Others vs M/S. Neelam And Others on 16 November, 2018
1 S/L. 80.
November 16, 2018.
MNS.
C. O. No. 3436 of 2018 Sri Amitava Mitter and others Vs. M/s. Neelam and others Mr. Hiranmay Bhattacharyya, Mr. Debraj Bhattacharya, Mr. Avirup Mondal, Mr. Soumalya Ganguli ...for the petitioners.
Mr. Sabyasachi Sen ...for the opposite party nos. 2 to 6.
Affidavit-of-service filed in Court today be taken on record. Despite service, none appears on behalf of the opposite party no. 1. The rest of the opposite parties, who are the main contesting opposite parties, are represented in court today along with the petitioners.
The grievance of the petitioners is that the executing court directed that the execution case will be heard subsequent to the application filed by the opposite party nos. 2 to 6 under Order XXI Rules 98 and 101 of the Code of Civil Procedure.
It is submitted on behalf of the petitioners that such a direction would, in effect, amount to grant of stay of the execution case and as such, occupation charges ought to have been imposed on the opposite party nos. 2 to 6.
Upon hearing both sides, this Court is of the opinion that, by virtue of the impugned order, no stay was granted by the executing court. Although the effect of the impugned order might be that the execution case would be stalled till disposal of the proceeding 2 under Order XXI Rules 98 and 101 of the Code, the law is well settled that applications of such nature have to be disposed of prior to proceeding with the connected execution case.
As such, the question of imposing occupation charges cannot arise at this stage. However, for the ends of justice, the miscellaneous case under Order XXI Rules 98 and 101 of the Code ought to be directed to be disposed of expeditiously.
Accordingly, C. O. No. 3436 of 2018 is disposed of by directing the Judge, Fifth Bench, Small Causes Court at Calcutta, to dispose of Miscellaneous Case No. 198 of 2017, pending in the said court, as expeditiously as possible, without granting any unnecessary adjournment to either side, positively within four weeks from the date of communication of this order to the executing court.
There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.) 3