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2007 DIGILAW 791 (CAL)

Sankar Parui v. Sandhya Mondal

2007-10-11

PRASENJIT MANDAL

body2007
Judgment :- (1) THIS is an application under Article 227 of the Constitution of India at the instance of the decree holders and is directed against the order dated 17. 02. 2007 passed by the learned Civil Judge (Senior Division), First Court, howrah in Title Execution Case No. 2 of 2004 arising out of the composite judgment and decree dated December 9,2003 in Title Suit No. 92 of 1998 and title Suit No. 84 of 2000. Being aggrieved by the said order, the decree-holders/petitioners have preferred this revisional application. (2) THE fact leading to the filing of the revisional application in short is that the decree-holders/petitioners filed the Title Suit No. 92 of 1998 before the learned Civil Judge (Senior Division), First Court, Howrah for ejectment and recovery of khas possession of the premises in suit under section 6 of the Specific Relief Act. The opposite party Nos. 1 and 2 contested the said suit and they also filed the Title Suit No. 84 of 2000 for declaration and injunction over the selfsame property. The two suits were heard analogously by the learned Civil Judge (Senior Division), First Court, howrah and by a composite judgment and decree dated December 9, 2003 the learned Civil Judge (Senior Division) decreed the Title Suit No. 92 of 1998 and he directed the opposite party Nos. 1 and 2 to vacate the premises in suit within a period of three months from the date of judgment. Thereafter the opposite party Nos. 1 and 2 filed an appeal before the learned District judge, Howrah bearing Title Appeal No. 13 of 2006. They also filed a revisional application under Article 227 of the Constitution of India against the composite judgment and decree dated December 9, 2003. They also filed another revisional application before the High Court at Calcutta against the order of rejection of their prayer for stay of the operation of the composite judgment and decree. Both the revisional applications were heard by the honble High Court at Calcutta and those were dismissed. Thereafter the appellate Court also dismissed the title appeal filed by the opposite party nos. 1 and 2. They also filed another second appeal before the Honble high Court at Calcutta but no stay order as yet has been obtained. Both the revisional applications were heard by the honble High Court at Calcutta and those were dismissed. Thereafter the appellate Court also dismissed the title appeal filed by the opposite party nos. 1 and 2. They also filed another second appeal before the Honble high Court at Calcutta but no stay order as yet has been obtained. So the decree-holders/petitioners have prayed for expeditious disposal of the execution case filed by them but the executing Court is granting time to the opposite party Nos. 1 and 2 without any order from the Honble High Court at Calcutta. So they have prayed for expeditious disposal of the execution case filed by them. (3) HAVING considered the submissions of the learned Advocates of both the sides and on perusal of the record, I find that the facts are rather admitted. There is no dispute that the decree-holders/petitioners filed the title Suit No. 92 of 1998 against the opposite party Nos. 1 and 2 under section 6 of the Specific Relief Act and that the suit had been decreed against the opposite party Nos. 1 and 2. At present, it is not in dispute that the opposite party Nos. 1 and 2 filed an appeal bearing Title Appeal No. 13 of 2006 against the decree-holders/petitioners and that appeal had been disposed of confirming the composite judgment and decree dated December 9, 2003. It is not in dispute that the opposite party Nos. 1 and 2 preferred two revisional applications before the Honble High Court at Calcutta - one against the composite judgment and decree dated December 9, 2003 and another against the order of rejection of the prayer of the opposite party nos. 1 and 2 for stay of the operation of the judgment and decree dated December 9, 2003. It is also not in dispute that both the revisional applications were heard analogously by the Honble High Court at Calcutta by a common judgment and that the same were dismissed. Admittedly, the decree-holders/petitioners filed the Execution Case No. 2 of 2004 for execution of the decree. (4) FROM the above facts and circumstances, it is crystal clear that so far as the Title Suit No. 92 of 1998 is concerned as no appeal is permissible against the judgment and decree dated December 9, 2003, the opposite party Nos. Admittedly, the decree-holders/petitioners filed the Execution Case No. 2 of 2004 for execution of the decree. (4) FROM the above facts and circumstances, it is crystal clear that so far as the Title Suit No. 92 of 1998 is concerned as no appeal is permissible against the judgment and decree dated December 9, 2003, the opposite party Nos. 1 and 2 preferred the revisional application under Article 227 of the Constitution of India and that application had been dismissed. There is no evidence that the opposite party Nos. 1 and 2 filed any special leave petition before the Honble Apex Court. Therefore, according to the provisions of Section 6 of the Specific Relief Act, the judgment and decree dated December 9, 2003 in respect of the Title Suit No. 92 of 1998 had reached to its finality and so there is no bar to proceed with the execution case against the opposite party Nos. 1 and 2. (5) SO far as the Title Suit No. 84 of 2000 filed the opposite party nos. 1 and 2 are concerned, I find that the said Title Suit No. 84 of 2000 was dismissed by the trial Court and that the appellate Court confirmed the said judgment and decree. (6) THE opposite party Nos. 1 and 2 have contended that they filed a second appeal but at present I do not find any paper on behalf of the opposite party Nos. 1 and 2 that they got any order of stay from the Honble High court at Calcutta against the Title Execution Case No. 2 of 2004 filed by the decree-holders/petitioners. (7) THE judgment and decree of the Title Suit No. 92 of 1998 having been confirmed by the appellate Court and there being no stay order against the Title Execution Case No. 2 of 2004 arising out of the said judgment and decree in the Title Suit No. 92 of 1998, there is no bar at all to proceed with the Title Execution Case No. 2 of 2004. But it is unfortunate to note that the learned Civil Judge (Senior Division) is granting adjournments time and again on the prayer of the opposite party Nos. 1 and 2. But it is unfortunate to note that the learned Civil Judge (Senior Division) is granting adjournments time and again on the prayer of the opposite party Nos. 1 and 2. (8) I have considered the rulings 31 Cal WN 653 and (2007)3 SCC 113 filed by the learned Advocate for the decree-holders/petitioners to show that the Court may grant a reasonable time to the judgment debtors/opposite party Nos. 1 and 2 to bring stay order from the higher forum. But, in the instant case, I find that the learned Civil Judge (Senior Division) is granting adjournments time and again, though the judgment debtors/opposite party nos. 1 and 2 have failed to show any order of stay from the Honble High court at Calcutta in the so-called second appeal before the High Court at Calcutta. (9) THEREFORE, I hold that the learned Civil Judge (Senior Division), first Court, Howrah has failed to exercise the jurisdiction vested in it. His actions cannot be supported. He shall proceed with the execution case. If the so-called second appeal of the judgment debtor/opposite party No. 1 is admitted and if any stay order is received in the meantime, in that case only the learned Civil Judge (Senior Division) shall grant stay otherwise he is at liberty to proceed with the execution case referred to. (10) IF it is found that the so-called second appeal of the judgment debtor/opposite party No. 1 is allowed afterwards and that the judgment and decree dated December 9, 2003 is varied or reversed in any way by any judgment and decree of the second appeal in Title Suit No. 84 of 2000, the remedy of the judgment debtor/opposite party No. 1 lies under Section 6 (4) of the Specific Relief Act. But, at present, the learned Civil Judge (Senior Division) is free to proceed with the execution case filed by the decree-holders/petitioners. (11) THEREFORE, I hold that the revisional application succeeds and it should be disposed of accordingly directing the learned Civil Judge (Senior Division), First Court, Howrah to proceed with the execution case. (12) ACCORDINGLY, the revisional application under Article 227 of the constitution of India stands disposed of with the above directions. The learned Civil Judge (Senior Division), First Court, Howrah is directed to proceed with the execution case. He shall not grant any adjournment more. (12) ACCORDINGLY, the revisional application under Article 227 of the constitution of India stands disposed of with the above directions. The learned Civil Judge (Senior Division), First Court, Howrah is directed to proceed with the execution case. He shall not grant any adjournment more. The parties to the suit are directed to appear without fail before the learned civil Judge (Senior Division), First Court, Howrah on the date fixed in the execution case referred to above for receiving further directions. (13) CONSIDERING the circumstances, there will be no order as to costs.