Sri Jayanta Kumar Mondal vs Sri Somnath Bhar on 10 February, 2020

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Calcutta High Court (Appellete Side)

Sri Jayanta Kumar Mondal vs Sri Somnath Bhar on 10 February, 2020

Bench: Biswajit Basu

                                            1


     ML 49
 Dt. 03.02.2020
  sandip

 Ct. 18
10.02.2020

C.O. No. 4383 of 2019 Sri Jayanta Kumar Mondal Vs. Sri Somnath Bhar Mr. Abhijit Banerjee, Mr. Sourav Sen, Ms. Sayani Bhattacharya ... For the petitioner. Affidavit of service filed in Court today be kept with the record. Inspite of service none appears on behalf of the opposite party. The decree holder in a suit for ejectment is the petitioner of the present application under Article 227 of the Constitution of India. The suit was decreed in the year 2017. The said decree has been put into execution giving rise to Title Execution Case No. 22 of 2017 before the 1st Court of learned Civil Judge, (Junior Division), Serampore, District Hooghly. The judgment debtor/opposite party in the said execution case has filed an application under Section 47 of the Code of Civil Procedure registered as Miscellaneous Case No. 82 of 2019. The petitioner on September 24, 2019 filed an application in the said Misc. case praying dismissal of it on the ground of maintainability.

The learned Trial Judge by the order impugned has dismissed the said application.

Mr. Abhijit Banerjee, learned senior advocate appearing on behalf of the petitioner submits that the maintainability of the said Misc. case may be considered at the time of its final disposal but the decision of the learned Trial Judge to decide the said Misc. case after taking evidence is pre-matured since the said decision can only be taken after considering the case made out in the application under Section 47 of the Code and the objection thereto filed by the petitioner.

I find substance in the said submission of Mr. Banerjee. It is not necessary that evidence is required to be taken in all the cases under Section 47 of the Code irrespective of the case made out in such an application.

It appears on perusal of the order impugned that excepting an observation in the said order that the petitioner has a right to substantiate his application under Section 47 of the Code by adducing substantial evidence no decision has been taken by the learned Court below to take evidence in the said Misc. case. That being the position, C.O. 4383 of 2019 is disposed of with the a request to the learned executing Court to dispose of the said Misc. Case No. 82 of 2019 expeditiously by allowing the parties to 3 adduce oral evidence only when the Executing Court feels such evidence is necessary for effective disposal of the said Misc. case. There shall be no order as to 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.)

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Calcutta High Court (Appellete Side)