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Judgment
The matter has appeared today as per the direction of this Court upon the same being mentioned on April 13, 2018 by the opposite parties.
It was pointed out on behalf of the opposite parties that the interim order dated April 11, 2018 passed by this Court in C. O. No. 703 of 2018 was
obtained by suppressing that a caveat had been previously lodged on behalf of the opposite parties.
Both sides appear in person.
It appears from a perusal of the records that the allegation of the opposite parties is correct and the interim order dated April 11, 2018 was passed
without notice to the opposite parties, despite a caveat having been lodged prior to the said date. Such incident is unfortunate and this Court expresses
its apology to the caveators/opposite parties for such an order having been passed.
In view of the said order having been passed in suppression of a caveat, the same is recalled with immediate effect. However, for the ends of
justice, both sides are heard on the merits of the matter.
The petitioners have preferred the instant revisional application against an order dated February 26, 2018 passed in Miscellaneous Appeal No.116 of
2017, refusing to grant stay of execution of an ex parte eviction decree obtained by the opposite parties against the petitioners.
The petitioners took out an application under Order IX Rule 13 of the Code of Civil Procedure, giving rise to Miscellaneous Case No. 3 of 2016, which
was ultimately dismissed on contest. The petitioners have preferred Miscellaneous Appeal No. 116 of 2017 against such dismissal and moved an
application for stay in connection with such appeal.
Such ad interim order for stay having been refused vide order No. 7 dated
February 26, 2018, the instant revision has been preferred.
The tenor of allegations made in the application under Order IX Rule 13 of the Code was that upon the death of the original defendant-Thakurdas
Mondal, the predecessor-in-interest of the present petitioners, no summons were served on the present petitioners, who were substituted in place of
the said deceased defendant. It was, however, admitted that the report of the Court Bailiff showed that summons had been served at least on the
petitioner nos. 1 and 2 while rest of the petitioners were absent, although apparently the address of the petitioners were correctly mentioned in the
summons.
The opposite parties contested the said application under Order IX Rule 13 of the Code, which was ultimately dismissed upon the trial court
disbelieving such contentions made out by the petitioners.
The appellate Court, by the impugned order, has adverted to the case of the petitioners and was of the prima facie opinion that there was nothing for
granting stay at that juncture.
Since it has not been effectively controverted that the address of the petitioners are the same and that the petitioners have been sailing on the same
boat, there does not seem to be any prima facie case for grant of stay since summons had been served at least on the petitioner nos. 1 and 2 and as
such, the petitioners cannot convincingly deny knowledge of the suit.
In such consideration of the matter, the petitioners do not have a prima facie case for stay of execution of the eviction decree and the order impugned
herein cannot be faulted on the ground of jurisdictional error or illegality.
Moreover, the exercise of discretion by the appellate court could not be said to be perverse and thus, ought not to be disturbed at the drop of a hat.
In such view of the matter, C. O. No. 703 of 2018, which is taken up for hearing today upon giving opportunity of hearing to both sides, is dismissed.
In view of the interim order of stay dated April 11, 2018 having been obtained by the petitioners in suppression of a caveat, the petitioners will make
good the costs for police help deposited by the opposite parties in the executing court by way of costs assessed at Rs. 5,334/- (Rupees five
thousand three hundred and thirty four) only, which is the exact amount deposited by the opposite parties for police help, as is borne out by a
photocopy of an information slip filed by the opposite parties today, which is kept on record.
Such costs will be paid by the petitioners to the opposite parties within a week from date.
In view of the urgency of the matter, the Additional District Judge, First Court at Sealdah, District- Sourth 24 Parganas, is requested to dispose of
Miscellaneous Appeal No. 116 of 2017 pending before him as expeditiously as possible, without granting unnecessary adjournments to the parties,
preferably by May 15, 2018.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.