Calcutta High Court (Appellete Side)
(184) Msst. Shamsad Begum & Ors vs Ganesh Chandra Saha on 21 June, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
21.6.13 C.O. 2067 of 2013
(184) Msst. Shamsad Begum & Ors.-Vs- Ganesh Chandra Saha
md.
& Another
Mr. Swarup Banerjee
..for the petitioners
Mr. N.Chatterjee
Mr. A. Lahiri
Mr. A. Banerjee
.. for the O.P.s
Challenge is to the order No.147 dated 10.5.2013 passed by the Learned Judge, 3rd Bench in the Small Cause Court in Misc. Case No.96 of 2013 thereby rejecting an application for stay of the Ejectment Execution Case No.152 of 2000. The judgment debtors/petitioners herein filed an application under Section 47 of the C.P.C. in the said execution case and that application has been converted into the Misc. Case being Misc.Case No.96 of 2013. In that Misc.Case an application for stay was filed and that was rejected by the impugned order.
Being aggrieved, this application has been preferred. Having heard the learned advocates of both sides and on perusal of the materials on record I find that the petitioners suffered an ex parte decree for recovery of possession in the year 1998 and the said decree has not been set aside by any Court. So the decree remains valid. 2 Now the contention of the petitioners is that in view of the provisions of Section 85 and 89 of the Wakf Property Act no suit shall be instituted against any other person before any Civil Court and the appropriate Forum is the Wakf Tribunal and so the Civil Court has no jurisdiction to try the suit.
In the instant case the dispute between the lessee tenant and the sub-tenant has already been decided in the year 1998 and at present I am concerned with the application for stay of the said execution case in view of the application under Section 47 of the CPC.
Anyway, the Misc. Case arising out of that application shall be disposed of in accordance with law but so far as stay is concerned I am of the view that the learned Executing Court has rightly opined that the dispute between the lessee tenant and the sub-tenant shall also be governed by the relevant provisions of the Tenancy Act. It may be recorded herein that several steps were taken by the judgment debtors/petitioners to frustrate the decree obtained in the year 1998.
Anyway, I agree with the findings of the learned Trial Judge that the petitioners have failed to make any valid ground for stay of execution of the decree. 3
Thus, I am of the view that it is not the case that the impugned order suffers from perversity or that the learned Executing Court has failed to exercise its jurisdiction vested in him or he exceeded the jurisdiction.
Accordingly, there is no scope for interference with the impugned order. So the application is dismissed.
However, there will be no order as to costs. Urgent certified Xerox of this order, if applied for, be given to the parties upon compliance with all requisite formalities.
(Prasenjit Mandal, J.) 4