Calcutta High Court (Appellete Side)
Aswini Shukla vs Urimala Devi on 22 November, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 22.11.2019
(M/L-302) Ct.-18 Susanta C.O. 1866 of 2018 Aswini Shukla
-Vs-
Urimala Devi, since deceased, represented by her heirs, Uday Kumar Singh & Ors.
Mr. Shiva Prasad Ghosh, Mr. Nirmalya Pal.
....... For the Petitioner.
Mr. Anurudha Mohanta.
....... For the Opposite Parties.
Affidavit-of-service filed in Court today be kept with the record. The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for ejectment and is directed against the order no.15 dated April 21, 2018 passed by the 4th Court of learned Civil Judge (Junior Division) Sealdah, in Ejectment Execution Case no. 16 of 2017 whereby the Executing Court has allowed an application for stay of all further proceedings of the said Execution Case pending disposal of the Misc. Case no.53 of 2018 under Order IX Rule 13 of the Code of Civil Procedure subject to deposit of a security of Rs.5,000/- (Rupees five thousand). The suit for ejectment filed by the plaintiff was decreed ex parte on February 23, 2017.
2The plaintiff put the said decree into execution which gives rise to Ejectment Execution Case no. 16 of 2017 before the 4th Court of learned Civil Judge (Junior Division) Sealdah. The judgment-debtor filed an application under Order IX Rule 13 of the Code for setting aside the ex parte decree under execution registered as Misc. Case no.53 of 2018. The judgment-debtor in the Execution Case applied for stay of all further proceedings of the said case pending disposal of the said Misc. Case under Order IX Rule 13 of the Code. The grievance of the decree-holder/petitioner is that the Executing Court has allowed the said application thereby stayed all further proceedings of the Execution Case without fixing the occupational charges to be paid by the judgment-debtor to enjoy the said order of stay. The grievance of the decree-holder/petitioner is justified. The judgment debtors/opposite parties are required to pay the occupational charges to arrest the further proceedings of the Execution Case pending disposal of their application under Order IX Rule 13 of the Code. The order impugned is, therefore, set aside with a direction upon the Executing Court to decide the said application afresh and to dispose it of in accordance with law within a period of three weeks from the date of communication of this order positively.
The executing Court shall make all endeavour to dispose of the connected Misc. Case no. 53 of 2018 expeditiously without granting any unnecessary adjournment to either of the parties.
With the above C.O. 1866 of 2018 is, disposed of. 3 There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)