Shibnath Barman vs Anjali Bagchi

Biswajit Basu, J

The plaintiff filed a suit being Title Suit no. 129 of 2007 subsequently re-numbered as Title Suit no. 258 of 2013 in the 4th Court of Learned Civil Judge (Junior Division) Serampore, Hooghly for eviction of the opposite parties form the suit property, inter alia, on the ground of reasonable requirement.

The said suit was decreed on March 31, 2016 and the said decree was affirmed by the First Appellate Court.

The petitioners put the said decree into execution which gives rise to Title Execution Case no. 9 of 2016.

The opposite parties preferred a Second Appeal being S.A.T no. 198 of 2018 against appellate decree.

In the said Second Appeal by the judgment and order dated September 20, 2018 all further proceedings of said execution case was stayed subject to the condition that the opposite parties will have to deposit the entire arrear rent upto the month of August 2018, at the rate of last paid rent in the executing Court by October 10, 2018.

A further condition was imposed by the said order directing the opposite parties to deposit a sum of Rs.10,000/- (Rupees ten thousand) only per month on account of occupational charges in the Executing Court. The first of such deposit for the month of September 2018 was directed to be made by October 12, 2018.

The occupational charges for the month of October 2018 was directed to be deposited by November, 2018 and such occupation charges for subsequent months were directed to be deposited till the disposal of the said appeal within 7th of each following months.

In the said order it was made clear that in default of payment of arrear rent and/or the occupational charges for any single month the said interim stay would automatically stand vacated and the learned executing Court in such situation would be free to proceed with the Execution Case in accordance with law.

The opposite parties in the said Execution case filed an application under Section 47 of the Code of Civil Procedure registered as Misc. Case no. 22 of 2019.

The opposite parties in the said Misc. Case filed an application praying stay of all further proceedings of the said Execution Case pending disposal of the Misc. Case no 22 of 2019.

The petitioner objected to the said prayer of the opposite parties on the ground that the opposite parties are not complying with the condition for stay of all further proceedings of the said Execution Case imposed on them by the order dated September 20, 2018 in the said Second Appeal.

The Executing Court overruling the said objection of the petitioner stayed all further proceedings of Title Execution Case No. 9 of 2016 till the disposal of the Misc. Case no. 22 of 2019.

The petitioner has challenged the said order no. 53 dated July 15, 2019 in the present application under Article 227 of the Constitution of India.

Mr. Chatterjee, learned Advocate appearing on behalf of the opposite parties submits that due to their financial stringency the judgment debtors could not comply with the condition imposed on them by the order dated September 20, 2018 passed in the said Second Appeal.

The order of stay of all further proceedings of the Execution Case was vacated automatically for the failure of the judgment debtors to comply with the conditions of the said order dated September 20, 2018 passed by the Hon'ble Division Bench in the said Second Appeal.

The Execution Court, therefore, has acted with gross irregularity in exercise of his jurisdiction in staying the further proceedings of the execution case during the pendency of the Misc. Case No. 22 of 2019 by overruling the objection of the petitioner.

The order no. 53 dated July 15, 2019 is, therefore, set aside with a direction upon the Executing Court to expedite the hearing of the Execution Case and to dispose it of within a period of six months from the date of communication of this order positively without granting any unnecessary adjournment to either of the parties.

The petitioner in the present revisional application has also challenged the Order No. 55 dated July 20, 2019 whereby the learned Trial Judge considering the age and ailment of two of the petitioners of Misc. Case no. 22 of 2019, namely Mr. Manash Agarwal and Mrs. Chandrani Agarwal directed recording of evidence of said persons in commission.

The grounds on which the learned Trial Judge has exercised his discretion to direct recording of the evidence of the said witnesses by a commissioner are good grounds for exercise of such discretion.

This Court, therefore, does not find any reason to interfere with the said discretion of the learned Trial Judge.

However, the recording of evidence of the said witness must be concluded within one month from the date of communication of this order and the Misc. Case No. 22 of 2019 itself should be disposed of within a month thereafter.

With the above C.O. 2736 of 2019 is disposed.

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.