Calcutta High Court (Appellete Side)
N. Das & Ors vs Jyoti Prokash Ghosh on 20 July, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
20.7.2017
Item No. 400
Court No. 14
ac
F.A. 27 of 1983
N. Das & Ors.
-versus-
Jyoti Prokash Ghosh, substituted by
Milan Chand Boral & Anr.
Mr. Apurba Kumar Ghosh.
... For the Applicant.
Mr. Purbangso Mitra,
Mr. Parvez Hossain,
Mr. Sukanta Mukherjee,
Ms. Piyali Mitra.
... For the Respondent No. 1(a)
Re : CAN 3325 of 2017, CAN 3326 of 2017.
This First appeal arises out of an eviction decree passed by the learned Trial Judge on 23rd February, 1982 in Ejectment Suit No. 558 of 1976. Decree for eviction was passed by the learned Trial Judge on the ground of subletting.
The legality of the said judgment and decree is under challenge in this First Appeal.
Because of the pendency of this appeal, the execution of the eviction decree remains incomplete and the decree holder/respondent is, thus, deprived of enjoying the fruits of the eviction decree passed by the learned Trial Judge.
The instant appeal was dismissed on 21st January, 2011 by the other Division Bench of this Court. While dismissing the instant appeal Their Lordships recorded in the order that the appellants are not interested to proceed with the appeal.
Be that as it may, subsequently an application for restoration was filed by the appellants in 2015. The said application which was registered as CAN 10842 of 2015 was also dismissed for default as no one appeared on behalf of the appellants even on second call on 10th August, 2016. Subsequently, the present application for restoration of the appeal after recalling the orders passed by this Court on different dates as mentioned, was taken out by the appellants.
Though we find that the appellants are not at all diligent in taking steps for pursuing the remedies before this Hon'ble Court but still then when the appellants have come forward showing eagerness to get the appeal heard, we dispose of these applications by restoring the appeal on condontionof delay to its original file and number subject to payment of cost Rs.1,00,000/- (Rupees One Lakh) only to the plaintiff/respondent within a week.
It is made clear that payment of such cost is a condition precedent for restoration of this appeal. It is, thus, clarified that in default of payment of such cost to the plaintiff/respondent and/or his leaned advocate-on-record within the time as fixed above, the appeal will remain dismissed.
If such cost is paid to the learned advocate-on-record of the plaintiff/respondent, the learned advocate-on-record of the plaintiff/ respondent will acknowledge receipt of such payment by granting a receipt therefor to the appellants.
We make it clear that the restoration of this appeal will not amount to restoration of the interim stay which was passed in this appeal earlier.
The execution will proceed on, before the learned executing court in accordance with law, with this rider that in the event the defendants/appellants are evicted from the suit premises through the process of execution during the pendency of the appeal, their possession will be restored as per the provision contained in Section 144 of the Code of Civil Procedure in case they succeed in this appeal.
It is further clarified that in the event such occasion arises and the possession of the suit premises is received by the plaintiff/respondent through the process of execution, he will neither change the nature and character of the suit property nor induct any tenant nor create any third party interest therein till the disposal of the appeal.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.) 1 3