Calcutta High Court
In Re: Nand Kishore Jalan And Ors. vs Smt. Chandra Mohini Khullar on 21 September, 1995
Equivalent citations: (1996)1CALLT70(HC), 1995 A I H C 6194, (1996) 1 CALLT 70, (1996) 2 ICC 908, (1996) 1 RENTLR 486, (1996) 1 CAL LJ 35
Author: Basudeva Panigrahi
Bench: Basudeva Panigrahi
JUDGMENT Basudeva Panigrahi, J.
1. This revision is directed against an order passed by the Assistant District Judge, Alipore in Title Execution Case No. 8 of 1994 dated 23rd February, 1995 rejecting the prayer of the petitioner to execute the order passed by this Court in matter No. 405 of 1994.
2. In this revision, the petitioners who claimed to be the trustees of one charitable trust estate namely New Road Nyas had let down the first floor of the premises for a period of 21 years to the respondent/opposite party. Notwithstanding, the expiry of the lease when the opposite party did not evince any interest to vacate the lease hold premises. The petitioners filed a suit for eviction against her. The suit was decreed on 25th March, 1994; the respondent/opposite party filed an appeal before the learned District Judge, South 24 Parganas at Alipore in T.A. No. 150 of 1994, inter alia, applied for stay of execution of decree. The appellate Court was however, inclined to grant conditional stay that opposite party on furnishing security to the extent of Rs. l,00,000/- further execution proceeding shall remain stayed.
3. The revision-petitioners thereafter, moved Calcutta Municipal Corporation for demolition of the said building since it is more than 200 years old. But however, it is stated that the respondent in collusion of the official of the Corporation stalled the move for demolition. As a result the petitioners had approached this Court by filing an application under Article 226 of the Constitution of India. This Court by a single Bench decision passed an order permitting the petitioners to repair the said building on the strength of the plan purported to have been passed by the City Architect. Being aggrieved by the order passed by the Single Bench, the opposite party has moved an appeal before the Division Bench and the Division Bench by an order dated 23rd February, 1994 directed the parties to maintain the order of status quo. It is stated that the respondent/opposite party taking advantage of the interlocutory order had permitted few others persons into the building with a view to stultify the decree passed in the eviction suit. Therefore, the petitioners filed a contempt application against the opposite party and her associates in matter No. 405 of 1995. This Court by a Division Bench passed orders on 30th March, 1994 and 31st March, 1994 permitting a few more persons to ingress and egress to the lease hold premises. The persons those who were permitted could not claim any equity for such occupation nor It would create any right in their favour. It is further alleged by the petitioners that the opposite party in flagrant disobedience of the orders passed by the Division Bench had allowed ingress and egress into the building of some persons other than those who have been permitted by the Division Bench. The petitioners, therefore, filed an application for executing the Division Bench Order dated 30.3.94 and 31.3.94. On filing those the application, the learned Registrar, Original Side had however, referred to the executing Court before whom the suit was filed for disposal in accordance with law. The executing Court after the proceeding being transmitted to it recorded the impugned order by which he was not inclined to send notice to the respondent opposite party.
4. The learned counsel for the petitioner, Mr. Sengupta has strongly urged that the impugned order suffers from serious jurisdictional error inasmuch as it should have sent notice in accordance with the order 21 C.P.C. and taken further steps for executing the order passed by this Court. He, however, indicated that when any order passed in a contempt proceeding is executable by Court of the first instance like any other order capable of being executed. His further contention appears that on Criminal Side of this court when there has been no rule framed as to how the order passed in a contempt proceeding would be executable, the procedure as laid down for executing the order passed in a contempt proceeding by the High Court on Appellate Side would as far as possible be followed. He has also invited my attention to Rule 27 of Rules regulating the procedure in the contempt matter framed under the contempt of Court Act, 1971.
5. The learned counsel appearing for the opposite party Mr. Soumitra Sen has taken me through the Impugned order, and relied upon the order dated 31.3.94 whereby and whereunder this Court has modified that apart from the applicants Baldeo Chowdhury, his wife, Sri Omprakash Khullar and Sri Tapan Behara shall be allowed to stay and reside at the premises. It is further clarified that in the event of any visitor coming to the said premises his/her egress and ingress shall not be interfered with in any way whatsoever. Therefore, the precise question in this case arises whether the persons who allegedly said to be the occupants of the premises were not authorised by the Division Bench of this Court or not is a question to be decided first before any execution proceeding is levied. In this particular case, the learned counsel has emphatically urged that the applicants have already approached for execution of the order passed by Division Bench to the interlocutory court which was listed for hearing on 18th August, 1995. Before the order to put to execution it shall be necessary to record a finding by the same court which had earlier passed an order that it was wilfully disobeyed by a party against whom it was passed earlier. Before passing of such order it does not give rise any right to the person in whose favour it is passed for putting the same into execution. In this situation it would be apposite for the petitioners again to move the same court who passed an order which can send for execution to the court of first instance and after recording an order that the opposite party has wilfully disobeyed its order. Since the revision petitioners have already filed an application before the Interlocutory court for executing the order dated 30th March. 1994 and 31st March, 1994 in the Matter No. 405 of 1995, it would be inappropriate to allow two proceedings to run in two different courts.
6. Accordingly, I do not find any apparent Illegalities in rejecting the prayer of the petitioners by the learned court below. In the result, the revisional application is bereft of merit and the same is thus, dismissed. But in the circumstances without costs.