Calcutta High Court (Appellete Side)
Rashida Hamid (Ahmed) vs Zubaida Hamid on 3 April, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 (12) 03.04.2019
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 3955 of 2017 With CAN 6370 of 2018 (recalling) Rashida Hamid (Ahmed)
-versus-
Zubaida Hamid Mr. Kali Das Saha, ... for the petitioner.
Mr. Wasin Ahmed, Mr. Nayeemuddin Munshi, Mr. Prashant Kumar Tripathi ... for the opposite party. This revisional application under Article 227 of the Constitution of India is directed against the order no. 17 dated August 30, 2017 passed by the learned Civil Judge (Junior Division), 2nd Court at Alipore whereby the learned Trial Judge has dismissed an application filed by the petitioner praying stay of the connected execution case.
The opposite party was successful in obtaining a decree for recovery of possession of the suit property in Ejectment Suit No. 39 of 2005. The judgment-debtors of the said decree are not parties to the present revisional application.
The opposite party put the said decree into execution which gives rise to the Ejectment Execution Case No. 10 of 2016.
2The petitioner in the said execution case challenging the executability of the said decree filed an application under Section 47 of the Code of Civil Procedure which has been registered before the learned Executing Court as Misc. Case No. 216 of 2017.
The petitioner by filing an application under Section 151 of the Code in the said Misc. Case no. 216 of 2017 prayed for stay of all further proceedings of the said Execution Case No. 10 of 2016 till the disposal of the said Misc. Case No. 216 of 2017.
The learned Executing Court has dismissed the said application of the petitioner by the order impugned.
The petitioner not being a party to the decree under execution cannot maintain an application under Section 47 of the Code.
Therefore, the learned Trial Judge has not committed any error in dismissing an application for stay of all further proceedings of the execution case on the ground of pendency of the said application under Section 47 of the Code.
This Court does not find any reason to interfere with the order impugned. CO 3955 of 2017 is thus dismissed.
CAN 6370 of 2018 is an application filed by the opposite party for recall of the order of stay passed in the present revisional application. In view of the dismissal of the revisional application the said application has become infructuous and is also dismissed.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)