Bholanath Dutta vs Shefalika Roy and Others

Prasenjit Mandal, J.—This application is at the instance of the tenant/Petitioner and is directed against the order dated August 13, 2010 passed by the learned Civil Judge (Senior Division),First Court, Alipore, District - South 24 Parganas in Title Execution Case No. 13 of 2009.

The decree holders filed the execution application being numbered as Title Execution Case No. 13 of 2009 to execute the decree passed in the Title Suit No. 63 of 1965. That decree was resisted and the Petitioner filed an application under Order 21 Rule 97 read with 98, 99, 100 and 101 of the CPC claiming that he is a bona fide tenant in respect of the premises in suit, as described in the schedule of the plaint and that he has been paying rent of the premises in suit all along. On the other hand, the Plaintiffs/decree holders/opposite parties herein filed an application under Order 21 Rule 97 of the CPC praying for police help for executing of the decree. The two applications were respectively recorded as Misc. Case No. 866 of 2010 and 10 of 2010. Now the Petitioner has come up for stay of the execution case till disposal of the misc. case filed by him. The learned executing court has observed that the misc. case preferred by the Petitioner shall be heard first on maintainability point and thereafter it will be decided as to whether the evidence is required or not to dispose of the said misc. case. Accordingly, the learned executing court fixed the next date on September 4, 2010. Being aggrieved by the said order, this revisional application has been preferred by the tenant/Petitioner herein.

Upon hearing the submission of the learned Counsel of both the sides and on going through the materials on record, I find that admittedly two misc. cases are pending in the said execution case, one filed by the decree holders for execution of the decree with the police help by the clients of Mr. H. Bhattacharya, and the other by the clients of Mr. Mukherjee contending that the predecessors-in-interest of the Petitioner was inducted in respect of the premises in suit in 1962 and since then the Petitioner has been possessing the premises in suit all along. On interrogation Mr. Mukherjee produces a number of rent receipts to show that his client has been paying rents to the landlord in respect of the premises in suit all along. It is the specific case of the client of Mr. Mukherjee that he has been possessing the premises in suit for all along since 1962. He was not aware of the execution of the case and also the suit filed by the Plaintiffs earlier and as such, he could not take appropriate steps earlier.

On the other hand, Mr. Bhattacharya has contended that such type of allegation cannot accepted because from the certified copy of the plaint of Title Suit No. 63 of 1965 appearing as annexure A, it is crystal clear that such certified copy was obtained by the Petitioner in March 2003 and so his contention that he knew the fact of the institution of the suit and the execution case subsequently, only two/three months back, on the basis of an information slip, cannot be supported.

I find substance in the submission made by Mr. Bhattacharya. But, at the same time since the client of Mr. Mukherjee has specifically asserted that he has been possessing the premises in suit all along since 1962, I think the misc. case filed Mr. Mukherjee''s client should be disposed of first. At the same time, there is no bar to proceed with the application filed by Mr. Bhattacharya''s clients for police help. In order to solve the dispute between the parties, I am of the view that the misc. case for police help may be disposed of also. But if it is found that the execution of the decree has been resisted, the writ of delivery of possession with the police help should not be granted till disposal of the misc. case filed by Mr. Bhattacharya''s client.

Accordingly, the learned executing court is directed to proceed with the two misc. cases filed by the parties simultaneously. But, he shall not issue any writ for delivery of possession with the police help till the disposal of the misc. case No. 866 of 2010. The learned executing court is directed to dispose of this misc. case No. 866 of 2010 within two months from the date of communication of this order. Thereafter he shall proceed with the case in accordance with law and above observations. This application is disposed of in the manner as indicated above.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.