Calcutta High Court (Appellete Side)
Chandan Bose & Anr vs Kalyan Bose & Ors on 1 November, 2017
Author: Harish Tandon
Bench: Harish Tandon
1 20 1.11. C.O. 590 of 2017 AGM 2017 Chandan Bose & Anr Versus Kalyan Bose & Ors Mr. Siba Prosad Ghosh, ... for the petitioners.
Mr. Rajnarayan Datta, Ms. Aritri Daw, ... for the opposite party.
This revisional application is directed against an order dated 3rd September 2016 passed by learned Civil Judge (Junior Division), 3rd Court, Sealdah in Ejectment Execution Case No. 17 of 2016 by which an application for stay of all further proceedings in the said execution case is stayed.
Admittedly, the petitioner emerged successful in getting the decree for eviction against the opposite party. The said decree was put into execution, which gave rise to registration of ejectment execution case no 17 of 2016. It is also not in dispute that the opposite party challenged the judgment and decree before the Appellate Court, which is registered as Title Appeal No. 41 of 2016. The said appeal was filed 2 out of time and by an order no. 5 dated 18th January 2017, the Appellate Court condoned the delay and directed the lower court records to be transferred to it. Admittedly, there is no application for stay filed by the opposite party before the Appellate Court either at the time of filing the memorandum of appeal or thereafter. However, the opposite party approached the Executing Court seeking for stay of the execution proceedings pending the disposal of the said appeal.
By the impugned order the Executing Court stayed the execution proceedings till the disposal of appeal which is challenged in this revisional application.
At the outset the learned advocate for the petitioner submits that the Executing Court cannot pass an order for stay of the execution proceedings when the appeal had already been filed by the judgment debtor/opposite party before the Appellate Court. It is further submitted that the executing Court while passing the order of stay did not impose any conditions rendering the judgment unsustainable 3 in law.
On the other hand, the learned advocate for the opposite party submits that there is no fetter on the part of the Executing Court in passing an order of stay of the execution proceeding under sub-rule (2) of Rule 5 of Order 41 of the Code of Civil Procedure. It is thus submitted that the Executing Court passed the order of stay till the disposal of appeal and therefore there is no necessity to file an independent application seeking identical and similar reliefs.
Before I proceed to deal with the points urged before me it would be profitable and relevant to quote the provisions contained under Order 41 Rule 5 of the Code of Civil Procedure, which runs thus :
"5. Stay by Appellate Court.- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
(2) Stay by Court which passed the decree. -
Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree 4 may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(a) that the application has been made without unreasonable delay; and
(a) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree."
From the meaningful reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 5 of the said order empowers the Executing Court to stay the execution provided the conditions enshrined therein is satisfied. The Executing Court can pass the order of stay of execution only when the time to file an appeal has not expired. It appears from the impugned order that the Executing Court was well aware of the filing of an appeal before the Appellate Court yet it proceeded to stay the 5 execution proceedings. If the powers are circumscribed and/or abridged by certain conditions unless those conditions are satisfied and or fulfilled by the party applying for the aforesaid provision, the Executing Court cannot pass an order of stay of execution. Once the appeal has been preferred against the judgment and decree the Executing Court is denuded of power to pass an order of stay of execution in view of a categorical expression used in sub-rule (2) of Rule 5 of Order 41 of the Code. The expression 'before the expiration of the time allowed for appealing therefrom' would be redundant if the Executing Court exercises the power even after the filing of an appeal or at least after the period of limitation provided for preferring an appeal has expired.
This Court, therefore, cannot concur with the reasons given in the impugned order nor to the ultimate decision in view of the provisions of law as indicated hereinbefore.
The order impugned is thus set aside. The revisional application succeeds. There shall be no order as to costs.
( Harish Tandon, J.) 6