Calcutta High Court (Appellete Side)
Ahasanulla Mullick & Ors vs Punjab National Bank on 21 August, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 (06) 21.08.2018
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 3138 of 2017 Ahasanulla Mullick & ors.
-versus-
Punjab National Bank Mr. Haradhan Banerjee Mr. N. Munshi Mr. S.K. Roy Mr. A.V. Mridha ... for the petitioners Affidavit of service and the letter of communicating the date of hearing of the revisional application to the opposite party by the learned advocate for the petitioners dated August 09, 2018 are kept on record.
None appears on behalf of the opposite party in spite of service. The revisional application under Article 227 of the Constitution is at the instance of the decree-holder in a suit for ejectment and is directed against the order No. 26 dated July 25, 2017 passed by the learned Judge 13th Bench, City Civil Court at Calcutta in Misc. Case No. 3698 of 2015 arising out of ejectment suit No. 571 of 1995.
2The learned Trial Judge by the order impugned has rejected the application of the decree- holders/petitioners whereby the petitioners prayed for release of the arrear rents lying deposited with the trial Court.
Mr. Haradhan Banerjee, learned Senior Counsel appearing on behalf of the petitioners draws my attention to the order dated February 4, 2000 passed in CO 1545 of 1999. The relevant portion of the said order is required to be quoted below:
"At the time of admission of this revisional application, a learned Judge of this court directed the petitioner to deposit a Bank Draft drawn in the name of Registrar General of this Court which amounted to Rs. 30,00000/- (Thirty Lakhs).
I am informed by the learned Counsel for the petitioner that the said amount has already been deposited with the Registrar General of this Court. That being the position, the Registrar General is directed to remit the said amount to the credit of the trial court and trial court shall invest the said amount in any nationalised bank until further orders of the trial court on the petition under Section 17(2) read with section 17(2A) (b) of the Act."
The suit thereafter was decreed on February 16, 2015 and the petitioners got the possession of the suit property on January 31, 2017. The plaintiffs/petitioners on November 24, 2016 filed an application before the Executing Court praying release of the amount lying deposited with the Executing Court in terms of the aforesaid order of the Hon'ble High Court in favour of the petitioners. The said application has been rejected by the learned trial Judge on the ground that the said amount does not relate to the present case and the decree-holder has remedy before the other Court. The learned Judge disposed of the execution case by the order impugned.
Mr. Haradhan Banerjee, learned Senior Counsel appearing for the petitioners fairly submits before this Court that in the execution application the arrear rents have not been included although 3 his clients are entitled to recover the said arrear rent as the decree is also for realization of the arrear rents.
There is force in the submission of Mr. Banerjee as it appears from the ordering portion of the judgment annexed to the revisional application that plaintiffs/decree-holders are entitled to recover the arrear rents after evicting the defendant from the suit premises. The ordering portion of the judgment is reproduced below:
"that the suit be and the same is decreed exparte against the defendant but without cost. The defendant Punjab National Bank be evicted from the suit premises forthwith. The plaintiff do get a decree of eviction and khas possession against the defendant by putting the dec4ree into execution.
Also the plaintiff is entitled to recover arrear rent after evicting the defendant from the suit premises."
Mr. Banerjee further submits that since the execution application does not include the arrear rents, his clients may be permitted to apply for the same by levying a fresh execution case.
The plaintiffs/decree-holders are entitled to levy the fresh execution case to satisfy the remaining part of the decree.
In view of the discussion made above, the revisional application being CO 3138 of 2017 is disposed of.
The petitioner is at liberty to take appropriate steps before the Executing Court for execution of the decree of arrear rents in accordance with law.
Urgent photostat certified copy of this order, if applied for, be supplied to the party as early as possible.
(Biswajit Basu, J.)