Calcutta High Court (Appellete Side)
Gd Sridhar Basu Mallick vs Smt. Kamala Sadhukhan & Ors on 6 August, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 31 06.8.2014
C.O. 2536 of 2013 gd Sridhar Basu Mallick Vs. Smt. Kamala Sadhukhan & Ors.
Mr. Vinay Kumar Purohit ..for the Petitioner Mr. Asit Kumar Chowdhury ..for the Opposite Parties The petitioner complains of the executing court declining to grant a stay of the execution proceedings since the petitioner's application for recalling the ex parte decree passed in the year 2008 had not been disposed of.
It is unbelievable that an application for recalling an ex parte decree can remain pending for eight years without the applicant taking special steps to ensure that the same is not disposed of expeditiously.
In such circumstances, the executing court cannot be faulted for declining the petitioner's unconditional prayer particularly since the petitioner had not been diligent enough to prosecute his application for recalling the ex parte decree before the appropriate court.
Since the petitioner says that extreme prejudice would be suffered by the petitioner if the decree is permitted to be executed prior to the petitioner's application under Order IX Rule 13 being heard, the petitioner is put on terms. There will be a further stay 2 of the execution proceedings, subject to the petitioner depositing a sum of Rs.1 lakh within a fortnight from date. There will be an unconditional stay for a fortnight from now but the stay will stand vacated without reference to any court if the deposit is not made before the executing court within a fortnight from date.
Upon the deposit being made, the executing court will invest the same by way of a fixed deposit with a nationalised bank and hold the receipt. In the event the petitioner's application under Order IX Rule 13 succeeds, the petitioner will be refunded the amount deposited together with the interest thereon. In the event such application fails, the money will be made over to the decree-holders together with the accrual thereto.
The order impugned dated March 18, 2013 is modified to the extent indicated above.
The trial court would do well to ensure that upon the deposit being made, the petitioner's application under Order IX Rule 13 is disposed of within a period of six months from the date of the deposit.
C.O. 2536 of 2013 is disposed of without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. 3 (Sanjib Banerjee, J.)