Calcutta High Court (Appellete Side)
Ac Mir Mussarraf Ali & Ors vs Halima Khatoon & Ors on 16 March, 2012
Author: Harish Tandon
Bench: Harish Tandon
1 Sl/ 16.3.12 C.O. 822 of 2012 12 ac Mir Mussarraf Ali & Ors
-vs-
Halima Khatoon & Ors Mr. Subrata Chandra Polle ... For Petitioners Mr. Abhijit Ray ... For Opposite Parties This revisional application is directed against Order No. 43 dated November 21, 2011 passed by the learned Judge-in-Charge, 6th Bench, Presidency Small Causes Court at Calcutta in Misc. Case No. 182 of 2011 by which an application for stay of the Execution Case No. 101 of 2007 is rejected.
Ejectment Suit No. 1634 of 2000 was filed seeking eviction on the grounds enumerated under Section 13 of the West Bengal Premises Tenancy Act, 1956. The said suit is ultimately decreed by the trial Court.
Assailing the said decree, the petitioner, by filing an application under Section 47 of the Code of Civil Procedure, contends that the said decree is fraudulent inasmuch as the other co-owners are not made parties in the said Ejectment Suit.
An application for stay of the execution proceeding is also taken out in the said Misc. Case No. 182 of 2011 which was registered on the basis of an application under Section 47 of the Code of Civil procedure filed by the petitioner.
The trial Court rejected the said application for stay as no plausible ground is made out which 2 warrants the Court to pass an order of stay.
Assailing the said order it is once again tried to be contended before this Court that pending disposal of the said application under Section 47 of the Code of Civil C.O. 822 of 2012 Procedure, the executing Court should stay all further proceedings of the execution case otherwise there would be nothing left to be decided by the executing Court in the said Misc. Case.
Mere filing a proceeding does not mean that the person is entitled to an order of stay unless some prima facie case and/or plausible ground is made out.
This Court also finds that no plausible ground and/or case is made out for passing an order of stay of the execution case.
This Court, thus, does not find any infirmity and/or illegality in the impugned order.
For abundant precaution, it is made clear that rejection of an application for stay in pending Misc. Case shall not have any persuasive effect upon the Executing Court at the time of final disposal of the said Misc. Case.
The revisional application is, thus, dismissed. However, there will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)