Calcutta High Court (Appellete Side)
3904/2013 on 5 December, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 05.12.2013
C.O. No. 3904 of 2013 s.d. Mr. Probal Kumar Mukherjee, Mr. Ayan Banerjee.
... for the petitioner.
Mr. Swapan Kumar Mallick, Mr. L. Haque.
... for the opposite party.
Heard the learned Advocates of both the sides. This application is at the instance of the judgment debtor and is filed against the Order No.107 dated September 17, 2013 passed by the learned Judge, Presidency Small Causes Court, 6th Bench, Calcutta in Ejectment Execution Case No.83 of 2008 arising out of Ejectment Suit No.470 of 1988.
The plaintiff/decree-holder/opposite party herein instituted the aforesaid ejectment suit against the defendant/judgment debtor/petitioner herein for recovery of possession in respect of the suit premises as described in the schedule to the plaint on the ground of building and re-building before the learned Trial Judge and the said suit was decreed. The said decree reached its finality and execution case being Ejectment Execution Case No.83 of 2008 has been filed.
In that execution proceeding, the defendant/judgment debtor/petitioner herein filed an application under Section 47 of the C.P.C. and the said application was rejected on an earlier occasion. Subsequently, the judgment debtor filed another application under Section 47 of the C.P.C. which has been converted into the Misc. Case No.141 of 2009. Evidence on 2 behalf of both the sides has been closed and the said misc. case has been fixed for hearing argument on December 9, 2013.
In the meantime, the decree-holder, on being resisted for execution of the decree, filed another misc. case for rendering police help and that misc. case for police help has been allowed and the date of delivery of possession with the help of police has been fixed on December 6, 2013. At this juncture, the judgment debtor has come up with this application praying for stay of the execution case.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the facts as recorded above are not in dispute. So, the position remains that the misc. case under Section 47 of the C.P.C. has been fixed on December 9, 2013 for hearing argument and even the delivery of possession with the help of police has also been fixed on December 6, 2013, i.e., earlier to the date of hearing argument of the misc. case. Therefore, in my view, if the writ of delivery of possession is executed on December 6, 2013 with the help of police, then the object of filing of the misc. case may be frustrated.
Mr. Swapan Kumar Mallick, learned Advocate appearing for the opposite party, has contended that the second application under Section 47 of the C.P.C. has no merit at all and if an application is filed under Section 47 of the C.P.C. without merit, the Court should not grant stay of the execution case automatically.
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With due respect to Mr. Mallick, I am of the opinion that while the misc. case was admitted or immediately after admission, the decree-holder did not pray for dismissal of the misc. case on the ground of non-maintainability and the said misc. case proceeded accordingly in accordance with law and is now fixed for hearing argument on the 9th instant.
This being the position, since the learned Trial Judge has admitted the said misc. case and it is fixed for hearing argument, in my view, the said misc. case under Section 47 of the C.P.C. must be disposed of before the date of delivery of possession. Accordingly, the situation needs interference and appropriate order of stay should be passed stopping the execution of the writ of delivery of possession with the help of police on the 6th instant. But, in my view, this will not be a blank order of stay and since this application has been preferred as the last moment, in my view, the judgment debtor should be directed to deposit certain amount for adjustment against the costs for police help and the occupational charges/rent, if any.
Accordingly, the situation demands for passing interim order for the time being on certain terms and conditions. In my view, the judgment debtor should be directed to deposit a sum of Rs.2,00,000/- by tomorrow (06.12.2013) as a condition for stay of the execution case for the time being.
Accordingly, this application shall be disposed of upon certain terms and conditions and the same is done in the following manner:-
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i) That the execution case shall remain stayed till December 16, 2013 provided the judgment debtor/petitioner herein deposits a sum of Rs.2 lakh before the learned Executing Court by tomorrow (06.12.2013) without fail in peremptory cash;
ii) That if such deposit is made, the said writ of delivery of possession will not be executed up to December 16, 2013. In default of making of deposit, the order of stay shall stand vacated automatically without any reference;
iii) That the learned Executing Court is requested to dispose of the Misc. Case No.141 of 2009 by December 13, 2013 without fail;
iv) That liberty is given to the decree-holder to withdraw the said amount from the Court; and
v) That the matter will appear on December 16, 2013 for passing further orders.
However, there will be no order as to costs. Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.
(Prasenjit Mandal. J.)