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2017 DIGILAW 585 (CAL)

Sandip Das v. Sushobhan Das

2017-07-03

SANJIB BANERJEE

body2017
JUDGMENT : SANJIB BANERJEE, J. 1. The opposite parties are not represented despite service. The petitioner herein obtained a decree for eviction jointly with the opposite party No. 2 against the opposite party No. 1. 2. After the decree, the opposite party may have gifted his share to the opposite party No. 1 who was the judgment-debtor in the suit for eviction. In the execution proceedings launched by the petitioner herein, the opposite party No. 1 has applied under Section 47 of the Code and has obtained a stay of the execution proceedings on such basis. 3. Order XXI Rule 29 of the Code permits the stay of the execution proceedings pending between the decree-holder and the judgment-debtor upon imposing certain conditions and indicating why the execution should be stayed during the pendency of a subsequent suit. It does not appear that a mere petition under Section 47 of the Code to arrest the execution proceedings can be a substitute for a suit that may be necessary to be filed for the opposite party No. 1 to assert his right in respect of the decretal premises. 4. The petitioner has relied on a judgment of the Punjab and Haryana High Court, reported at 2014(3) ICC 220. Though the facts were somewhat different and a suit had been filed in that case by the judgment debtor who claimed to have obtained a gift of a part of the decretal premises from one of the decree-holders, the Court observed that merely because such a suit had been filed would not operate as a stay of the execution proceedings, but the Court would have to indicate why the stay was necessary in the circumstances. 5. Though the judgment cited may not throw any light on the issue that has arisen herein, it must be appreciated that the plea raised by the opposite party No. 1 does not necessarily question the executability of the decree which is the subject-matter of the execution proceedings. In any event, it is in a rare case that a judgment-debtor who has been afforded a chance to contest the suit but has suffered the decree will get another bite of the cherry by applying under Section 47 of the Code. The remedy of the opposite party No. 1 in this case may have been somewhat different. In any event, it is in a rare case that a judgment-debtor who has been afforded a chance to contest the suit but has suffered the decree will get another bite of the cherry by applying under Section 47 of the Code. The remedy of the opposite party No. 1 in this case may have been somewhat different. However, since it is a mere Section 47 petition which has been filed by the opposite party No. 1, the event subsequent to the passing of the decree does not appear to impinge on the executability of the decree. The opposite party No. 1, being a judgment-debtor, has to yield to the decree; and, whatever may be the subsequent rights of the opposite party No. 1, he has to assert, establish and obtain adequate protection in a suit for partition or the like that may be instituted by the opposite party No. 1. 6. Accordingly, C.O. 1690 of 2017 is allowed by setting aside the order impugned dated March 04, 2017 and by requesting the executing Court to proceed with the matter as expeditiously as possible and without undue delay. In the event the petitioner herein obtains possession of the decretal premises pursuant to any order that may be passed in the execution proceedings, the petitioner will remain restrained from parting with possession thereof for a period of two months to enable the opposite party No. 1 to obtain an appropriate order from an appropriate forum in such regard. There will be no order as to costs.