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Calcutta High Court · body

2016 DIGILAW 79 (CAL)

Somenath Chakraborty v. Kamalesh Adak

2016-01-25

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : In this revisional application the petitioner, being the defendant-judgment debtor in Ejectment Case No. 1082 of 2014 arising out of Ejectment Suit No. 7 of 2013, has challenged the orders, being Nos. 19 and 20, dated August 26, 2015 and September 04, 2015, respectively passed by the learned Judge, 4th Bench, Presidency Small Causes Court at Calcutta. The grievance of the petitioner is that in the ejectment suit he has suffered an ex parte decree passed by the learned Court below in Ejectment Suit No. 7 of 2013. He has already filed an application under Order IX Rule 13 of the Code of Civil Procedure, hereinafter called “the Code”, praying for, recalling of the said ex parte ejectment decree and the same is pending disposal before the learned Court below. He has also filed an application under Section 151 of the Code, before the learned Executing Court, praying for, stay of all further proceedings in the execution case till the disposal of the application filed by the petitioner under Order IX Rule 13 of the Code. Mr. Bhattacharya, learned Advocate appearing for the petitioner, submitted that while the application filed by the petitioner under Order IX Rule 13 of the Code is pending, by the impugned order dated August 26, 2015 the learned Executing Court has allowed the application filed by the opposite party-decree holder for payment of additional cost for deployment of necessary police personnel at the suit property for execution of the eviction decree. According to him, while both the applications of the petitioner under Order IX Rule 13 and Section 151 of the Code are already pending disposal, the learned Executing Court has committed patent error of law in passing the order dated August 26, 2015. He further contended that the learned Executing Court committed a further error of law in passing the order dated September 04, 2015 thereby merely keeping on record the application filed by the petitioner under Section 151 of the Code praying for, stay of all further proceedings in the execution case. Mr. Sumit Roy, learned Advocate representing the opposite parties-decree holders, however, submitted that the application filed by the petitioner under Section 151 of the Code praying for, stay of all further proceedings in the execution case has been fixed by the learned Court below for hearing on February 09, 2016 and, as such, this application is not maintainable. Mr. Mr. Sumit Roy, learned Advocate representing the opposite parties-decree holders, however, submitted that the application filed by the petitioner under Section 151 of the Code praying for, stay of all further proceedings in the execution case has been fixed by the learned Court below for hearing on February 09, 2016 and, as such, this application is not maintainable. Mr. Roy further submitted that the opposite parties cannot execute the eviction decree before the next date of hearing fixed for the application filed by the petitioner under Section 151 of the Code, that is, February 09, 2016. Considering the facts and circumstances of the case, when the application filed by the petitioner under Section 151 of the Code has been fixed for hearing before the learned Executing Court on February 09, 2016 and in view of the above submission made by Mr. Roy, I find that this application can be disposed of by directing the learned Court below to take up the application filed by the petitioner under Section 151 of the Code for hearing on the next date fixed and to dispose of the same expeditiously without granting any adjournment to either of the parties. The opposite parties shall not execute the eviction decree against the petitioner till the disposal of the application under Section 151 of the Code. With the above directions, the revisional application, being C.O.3907 of 2015, stands disposed of. There shall, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.