Calcutta High Court (Appellete Side)
Ram Shankar Kamila & Ors vs Tanmoy Pani on 5 February, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1 316,ML,Ct.18. 05.02.2020
.
AJ.
C.O. 942 of 2016 Srihari Kamila, since deceased his heirs and legal representatives Ram Shankar Kamila & Ors.
-Vs-
Tanmoy Pani Mr. Kaushik Dey.
... for the petitioners.
Affidavit-of-service filed in Court today be kept with the record. None appears on behalf of the opposite party in spite of service.
The petitioners had filed a suit being O.S. No. 294 of 2007 before the 1st Additional Court of the learned Civil Judge (Junior Division), Contai, Purba Medinipur for eviction of the opposite party.
The suit was decreed on October 29, 2009. The appeal therefrom taken out by the opposite party was dismissed on September 16, 2010 and the petitioners got possession of the suit property in execution of the said decree on August 08, 2012 through the original Execution Case No. 02 of 2010.
The Court Bailiff while giving possession of the suit property to the petitioners kept some of the articles of the judgment-debtor/opposite party in the custody of the petitioners. The petitioners approached the executing Court with an application for releasing them as the custodian of the said articles and to pass appropriate order for keeping the same in the custody of the executing Court.
2
The executing Court by the Order No. 78 dated January 19, 2016 has dismissed the said application with an observation that the similar prayer of the petitioners was refused by his predecessors-in-office on the ground of pendency of the second appeal against the appellate decree before this Court.
Mr. Dey, learned advocate appearing on behalf of the petitioners submits that the said second appeal has not yet been admitted. Therefore, mere pendency of the second appeal cannot operate as stay of all further proceedings of the said execution case. He further submits that his clients are unable to enjoy the fruits of the decree as the articles of the judgment-debtor are kept in one of the rooms, possession of which they have got in execution of the decree.
The petitioners being the holders of an ejectment decree are entitled to enjoy the fruits of the decree in full, they are not obliged to keep the articles of the judgment-debtor as it infringes their right to enjoy the decreetal property. The prayer of the petitioners for similar relief was refused earlier in the facts and circumstances of the present case, particularly for the interest of justice, cannot operate as res judicata in affording an appropriate relief to the petitioners.
The order impugned for the aforesaid reason is set aside. The executing Court is directed to dispose of the application filed by the petitioners on October 06, 2015 for releasing them as the custodian of the movable property expeditiously.
C.O. 942 of 2016 is disposed of.
3There shall be no order for 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.)