Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 899 (CAL)

Barun Samanta v. Rabin Bhakta

2017-11-21

HARISH TANDON

body2017
JUDGMENT : Harish Tandon, J. 1. A recalcitrant judgment-debtor has approached this Court to challenge the order No. 27 dated 18th September 2017 passed by learned Civil Judge (Junior Division), Uluberia at Howrah in Title Execution Case No. 01 of 2014 by which an application for modification of the order dated 1st April 2016, is rejected. A suit for recovery of possession was filed by the opposite party against the petitioner. The said suit was decreed ex-parte and such decree was put into execution. At this juncture the petitioner approached this Court by filing under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. An application for stay of the execution proceedings was taken out by the petitioner contending that if the decree is executed during the pendency of the application under Order 9 Rule 13 of the Code, it would cause serious hardship and injury to the petitioner. 2. While disposing of the application for stay, the Court imposed the condition that the petitioner would deposit a sum of Rs. 50,000/- as and when by way of security for stay of the execution proceedings. The petitioner did not stop and instead of complying the said order, he took out an application for modification of the order dated 1st April 2016 alleging that instead of deposit of the money he should be allowed to give a security by depositing the title deed of the property over which he has right, title and interest. 3. By the impugned order the Court refused to accept the prayer of the petitioner and directed the petitioner to comply the order dated 1st April 2016 by 18th November 2017. The journey of the petitioner did not stop as he challenged this order refusing to modify the order dated 1st April 2017 before this Court in the instant revisional application. 4. Since the opposite party has not challenged the order dated 1st April 2016 and accepted the condition imposed therein, this Court, therefore, cannot enter into the legality and veracity of the said order. 5. It is no longer res Integra that the executing Court or the appellate Court should not pass the blanket order of stay for execution proceeding in relation to decree for eviction or recovery of possession without imposing conditions. The condition may vary on a given set of facts and depends upon case to case. 5. It is no longer res Integra that the executing Court or the appellate Court should not pass the blanket order of stay for execution proceeding in relation to decree for eviction or recovery of possession without imposing conditions. The condition may vary on a given set of facts and depends upon case to case. In the instant case the Court directed the petitioner to deposit Rs. 50,000/- as and when by way of security and never intended to give the security in any other form. 6. The petitioner has gained substantial time by taking out an application for modification and this Court, therefore, feels that it is a high time for such condition to be fulfilled. 7. This Court does not find any infirmity and/or illegality in the order No. 27 dated 19th September 2017, which is impugned in the revisional application. 8. The revisional application thus fails. 9. However, time to deposit the said sum of Rs. 50,000/- is extended by 15 days from date. With these observations, the revisional application is dismissed. There shall be no order as to costs.