Calcutta High Court (Appellete Side)
Mamina Khatoon & Ors vs Md. Awez Khadim & Ors on 2 January, 2025
13 IN THE HIGH COURT AT CALCUTTA
02.01.2025 CIVIL REVISIONAL JURISDICTION
sb
Ct 5
CO 4111 of 2024
Mamina Khatoon & Ors.
Versus
Md. Awez Khadim & Ors.
Mr.Bidhayak Lahiri
Ms. Bhaswati Lahiri
Mr. Pradip Kumar Ghosh
... For the petitioners.
1.Challenging the order dated 13th November, 2024 passed by the learned Judge, 6th Bench, Presidency Small Causes Court, Calcutta, whereby the application filed by the plaintiffs under Order XXI Rule 97 of the Code of Civil Procedure (for short, Code) was allowed by rejecting the application filed by the petitioners under Section 151 of the Code, the instant revisional application has been filed.
2. The petitioners would submit that the suit was decreed on compromise as against the petitioners who are the defendant nos. 2(a) to 2(f ) in the suit in terms of the compromise petition. The petitioners, who are the tenants in respect of the suit property, had agreed to vacate the suit premises upon the plaintiffs obtaining the sanction plan and upon intimation of such fact to the petitioners subject to the plaintiffs' 2 provided shifting charges of Rs.5000/- per month. It was also agreed by and between the parties that plaintiffs will provide accommodation to the defendant nos. 2(a) to 2(f) i.e. the petitioners herein in the newly constructed building comprising 900 sq.ft., on the third floor within two years from the date of vacating the said premises. The other terms of the compromise decree would corroborate from the terms of decree itself. It is the petitioners' case that without intimating the petitioners with regard to the grant of sanction by the municipal authorities the decree was put to execution which not only include the portion occupied by the petitioners but the portion occupied by other defendants. It is in connection with such Ejectment execution case being no. 91 of 2023, the petitioners had filed an application under Section 151 of the Code, inter alia, to bring on record the factum of compromise decree.
3. Mr. Lahiri, learned advocate appearing in support of the aforesaid application by drawing attention of this Court to the affidavit-in-reply filed by the plaintiffs/opposite parties to the application filed by the petitioners under Section 151 of the Code would submit that the opposite 3 parties had conceded to the prayer of the petitioners in deleting the portions of the petitioners' occupation from the execution proceeding and such fact would corroborate from paragraph 11 of the affidavit-in-reply filed by the plaintiffs/opposite parties as aforesaid. He submits that the learned Court without appropriately appreciating the factum of compromise decree and terms thereof and without noting that the plaintiffs themselves had conceded to the petitioners' retaining possession of the portion under their occupation, had rejected the application filed by the petitioners.
4. Having regard thereto, I am of the view that the aforesaid application is required to be heard.
5. The petitioners are directed to serve a copy of the revisional application upon the opposite parties and to file an affidavit of service to that effect when the matter is taken up next.
6. In view thereof, the order dated 13th November, 2024 insofar as the same rejects the application filed by the petitioners under Section 151 of the Code praying for deleting the room mentioned in paragraph no.5 thereof from the schedule of executable property and protecting the possession of the petitioners, shall remain 4 stayed. The direction for police help as directed by the order dated 13th November, 2024 shall also not interfere with the occupational rights of the petitioners in the suit property as identified in paragraph 5 of the application filed under Section 151 of the Code.
7. The aforesaid interim order shall continue till the end of September, 2025 or until further order, whichever is earlier.
8. List this matter in the Combined Monthly List of March, 2025 under the heading "Returnable Motion".
(Raja Basu Chowdhury, J.)