Calcutta High Court (Appellete Side)
Md. Mustafa And Another vs Md. Salim And Another on 13 December, 2017
1 S/L. 4.
December 13, 2017.
MNS.
C. O. No. 3025 of 2017 Md. Mustafa and another Vs. Md. Salim and another Ms. Shila Sarkar ...for the petitioners.
Mr. Rohit Kumar Shaw ...for the opposite party no. 1.
The decree-holders in an eviction suit have taken out the present application under Article 227 of the Constitution of India.
By virtue of the impugned order dated July 25, 2017, the Executing Court had passed an order of stay till disposal of Miscellaneous Case No. 34 of 2017 which is an application filed at the instance of a third party being the present opposite party no. 1 under Order XXI Rules 97 - 101 of the Code of Civil Procedure.
It is evident from the impugned order that the Executing Court was entirely without jurisdiction in disposing of the application for stay itself on the first date on which it was moved and in granting stay till disposal of the miscellaneous case without even granting any opportunity of hearing to the decree-holders. Moreover, the Executing court while passing the impugned order had merely paid lip-service to the well-settled requirement of assigning reasons while passing a judicial order. It appears from the impugned order that although the court below recorded that the present opposite party no. 1 had filed some documents, none of such documents were even cursorily referred to in the impugned order. The Executing Court proceeded on the premise that an order of stay is to be passed on the asking upon a third party-obstructionist having done the favour of filing an application under Order XXI Rules 97 - 101 of the Code of Civil Procedure.
In fact, the confidence of this Court is also not inspired in favour of granting stay in favour of the third party-obstructionist. One reason therefor is that such obstructionist is the husband of the judgment-debtor/opposite party no. 2, the latter admittedly residing in 2 the suit premises. No story of any estrangement between the judgment-debtor and the obstructionist, her spouse, has been made out.
As such, it is not prima facie credible that the husband of the judgment-debtor survived the entire ordeal of litigation without having any inkling of an eviction decree having been passed against his wife, who apparently resides in the said premises. A second factor which prima facie casts a doubt in the mind of this Court is that admittedly the obstructionist/opposite party no. 1 has been arrayed as an opposite party in the revisional application as well as served at an address which is different from the suit property.
The learned counsel for the opposite party no. 1-obstructionist cites a judgement reported at AIR 1997 SC 856 (Brahmdeo Chaudhary Versus Rishikesh Prasad Jaiswal and another). Such report is a precedent on the well-settled proposition that a stranger need not wait for dispossession for taking out an application under Order XXI Rule 97 - 101 of the Code of Civil Procedure to resist a decree. Since such proposition does not at all fall for consideration in the present case, the said judgment is irrelevant for the present purpose.
However, detailed consideration of the merits of the case would adversely prejudice either of the parties. As such, this Court desists from passing any further observation in the matter. Even on the ground that the stay application was disposed of without directing notice on the decree-holders, the impugned order ought to be set aside on the face of it without going into the merits further.
As such, C. O. No. 3025 of 2017 is disposed of by setting aside the impugned order dated July 25, 2017, and directing the Civil Judge(Junior Division), Fourth Court at Sealdah, to dispose of the application for stay filed in connection with Miscellaneous Case No. 34 of 2017 afresh upon giving an opportunity of hearing to both sides. While disposing of such stay application, the Court below will arrive at its independent findings without being prejudiced in any manner by any of the observations arrived at by this Court in the present order.
There will be no order as to costs.
(Sabyasachi Bhattacharyya, J.) 3