Calcutta High Court (Appellete Side)
920/2012 on 22 March, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 22.03.2012
Item No.27 SB C.O. 920 of 2012 Mr. Abhijit Roy..........for the petitioner. Mr. Souradipta Banerjee......for the opposite parties. Heard learned advocates of both the sides. This application is at the instance of the defendant no.3 and is directed against the order dated 13.03.2012 passed by the learned Judge, Presidency Small Causes Court, 6th Bench, Calcutta in Misc. Case No. 34 of 2012, arising out of the Ejectment Suit No. 1100 of 2001. The petitioner filed the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree against him and others in the Ejectment Suit. The Misc. Case No. 34 of 2012 is fixed for hearing on 02.04.2012. The decree holders/opposite parties herein filed an execution proceeding and delivery of possession is going to be made with the help of police today. Under the circumstances, this application has been filed for stay of the execution proceeding.
Upon hearing the learned advocates for the parties and after going through the materials on record, I find that it is not in dispute that the petitioner suffered an ex parte decree in 2 Ejectment Suit and for that reason he filed an application under Order 9 Rule 13 of the Code. It is fixed for hearing on 02.04.2012. In the meantime, delivery of possession is going to be made with the help of police today. So, if possession is delivered with the help of police, filing of the Misc. Case will be infructuous. This being the position, I am of the view that the present revisional application should be allowed upon certain terms and conditions. Accordingly, this application is allowed with the following terms and conditions:
(i) that the learned Trial Judge shall take up the Misc. Case No. 34 of 2012 for hearing on the date fixed that is on 02.04.2012. Thereafter he must endeavour to dispose of the suit within a period of two months without fail.
(ii) if necessary, the learned trial Judge may take up the matter for day-to-day hearing and he shall not grant any unnecessary adjournment to either of the parties except in extremely urgent cases;
(iii) the Execution Case No. 18 of 2010 be stayed for a period of three months or till disposal of the said Misc. Case, whichever is earlier subject to the condition that the petitioner deposits a sum of Rs.20,000/- by 02.04.2012 and that if no deposit of the said amount is made within 3 that date, the order of stay shall stand vacated automatically.
Both the parties are permitted to take gist of this order and to communicate to the learned Judge of the Trial Court. There will be no order for costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.
(PRASENJIT MANDAL, J.)