Calcutta High Court (Appellete Side)
Snandy vs (Disposed Of) on 13 July, 2015
Author: Harish Tandon
Bench: Harish Tandon
1 13.07.2015 CO 2230 of 2015 Court No. 02 Item No. SL-04 Gouranga Chandra Aich snandy Vs. (DISPOSED OF) Nitya Nanda Aich Mr. Saptangshu Basu, Senior Advocate Mr. Shiva Prasad Ghosh, Advocate ......for the Petitioner Mr. Aniruddha Chatterjee, Advocate ......for the Opposite Party This revisional application is directed against an order no. 24 dated June 20, 2015 passed by the learned Civil Judge (Junior Division), Fourth Court, Sealdah in Ejectment Execution Case No. 8 of 2013 by which an application for stay of the further proceeding is rejected.
The said execution case was filed by the plaintiff/ opposite party to execute the ex parte decree for eviction passed against the petitioner. Indisputably the petitioner has filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree. Amidst pendency of the said application, the Executing Court proceeded with the execution case in absence of any order of stay and ultimately passed the order directing the police to assist the bailiff in executing the writ of possession.
At this juncture, an application is taken out for stay of the execution proceeding pending an application under Order 9 Rule 13 of the Code. At the time of admitting the instant revisional application this Court directed the petitioner to pay 2 the cost of police help to the plaintiff/opposite party amounting to Rs.40,000/- which have been paid.
It is discretion of the Executing Court to stay the executing proceeding pending an application under Order 9 Rule 13 of the Code. But such discretion should be exercised judicially and in the attending facts and circumstances and not capriciously or whimsically.
Considering the relationship between the parties to the litigation and the averments made in an application under Order 9 Rule 13 of the Code, this Court finds that it was a fit case where the Executing Court ought to have stayed the executing proceeding by imposing certain conditions.
The order impugned thus set aside.
There shall be a stay of all further proceeding of Ejectment Execution Case No. 8 of 2013 pending before the Fourth Court of learned Civil Judge (Junior Division), Sealdah till the disposal of Miscellaneous Case No. 10 of 2015 subject to deposit of a sum of Rs.3,00,000/- (Rupees Three Lakhs) in the Executing Court within two weeks from date. In default, this order shall automatically stand recalled and the decree-holder/opposite party shall be free to proceed with the executing case. The said deposit shall abided by the result of an application under Order 9 Rule 13 of the Code. 3
There shall be a unconditional stay of all further proceeding of Ejectment Execution Case No. 8 of 2013 pending before the Fourth Court of learned Civil Judge (Junior Division), Sealdah for a period of two weeks from date.
The decree-holder/opposite party is directed to file affidavit-in-opposition to an application under Order 9 Rule 13 of the Code of Civil Procedure within a week from date, if not already filed. Reply thereto, if any, shall be filed within a week thereafter.
The Trial Court is directed to see that the application under Order 9 Rule 13 of the Code which gave rise to registration of Miscellaneous Case No. 10 of 2015 is disposed of within six weeks from the date of communication of this order.
It is, however, made clear that any interlocutory application pending in connection with the said Miscellaneous Case shall be disposed of immediately in order to adhere the time limit indicated above. The time limit indicated here is peremptory and mandatory.
With these observations, the revisional application is disposed of.
(Harish Tandon, J.) 4