Calcutta High Court (Appellete Side)
Narayan Mondal And Others vs Smt. Jamuna Patra And Others on 18 May, 2018
1 18.05.
unlis ted 2018 Bpg.
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No.1329 of 2018 Narayan Mondal and others Versus Smt. Jamuna Patra and others Mr. Tarak Nath Halder.
...for the petitioners.
Mr. Sibnath Ganguly.
...for the opposite parties.
Although the presentation date in the computer sheet accompanying this application under Article 227 of the Constitution of India gives June 4, 2018 as the returnable date for the present matter, in view of urgency, the same was mentioned and is being taken up as an unlisted motion in presence of the learned counsel for the petitioners as well as the caveators/opposite parties.
The petitioners raise an important question of law. By the impugned order, the executing court has rejected an application under Section 47 of the Code of 2 Civil Procedure, in which the question of inherent lack of jurisdiction of the civil court in passing an eviction decree in respect of a thika tenancy property was raised. The executing court, by the impugned order, refused such adjudication on the premise that the said question was already decided in the suit while passing the decree in question.
Learned counsel for the petitioners argues that if the trial court itself lacked inherent jurisdiction to take up the suit, the decree would be vitiated and such point could be raised even in execution. He relies on the decision reported at AIR 1954 SC 340 (Kiran Singh and others Vs. Champa Paswan and others).
Learned counsel for the decree- holders/opposite parties controverts such contention by arguing that since such issue was already clinched in the suit itself, the executing court could not go behind the decree. Since an important question of law and jurisdiction has been raised, the matter will be taken up as "Specially Fixed Matter" on June 12, 2018.
There will be an order of stay of all further proceedings in Ejectment Execution Case no.3 of 2016 pending in the Additional Court of Civil Judge (Junior 3 Division) at Sealdah, till June 30, 2018 or until further orders, whichever is earlier.
(Sabyasachi Bhattacharyya, J. )