Sri Somenath Das And Others vs Sri Sibu Mondal
2021 Latest Caselaw 4387 Cal

  173
24.08.2021

TN

CO No.341 of 2020 IA No: CAN 1 of 2021

Sri Somenath Das and others Vs.

Sri Sibu Mondal

Mr. Prantick Ghosh

.... for the petitioners

Mr. Prabir Adhya .... for the opposite party

Affidavit-of-service filed in court today be kept

on record.

Re: CAN 1 of 2021

In view of sufficient cause for the absence of the

petitioners on the relevant date having been made out,

CAN 1 of 2021 is allowed, thereby recalling the order

dated July 1, 2021 and restoring CO No.341 of 2020

to its original file and number.

The main revisional application is taken up for

hearing.

Re: CO No.341 of 2020

Learned counsel for the petitioners contends

that the court below acted without jurisdiction in

granting a one-time payment of Rs.10,000/- by the

judgment debtor/opposite party as condition for grant

of stay of execution of an eviction decree. Such order

was passed in connection with a proceeding under

Order IX Rule 13 of the Code of Civil Procedure,

initiated by the opposite party.

It is contended by learned counsel for the

opposite party that the discretion lies with the court to

grant occupation charges in whatever form as the trial

court deems fit.

There is substance in such submission.

That apart, it appears from the submissions of

learned counsel for the opposite party that the

judgment debtor/opposite party is a rickshaw-puller

by occupation and, as such, keeping in view the

modest financial condition of the opposite party, this

court finds no scope of interfering with the impugned

order, which was passed within the judicial discretion

of the court below. However, keeping in balance the

suffering of the decree-holder due to delay in the

execution of the eviction decree, the opposite party is

directed to pay costs of Rs.5,000/- to the petitioners,

on condition of payment of which, CO No.341 of 2020

is disposed of without interfering with the impugned

order. Such costs shall be paid to the petitioners

within a week from date.

The court below shall dispose of the

miscellaneous case itself, that is, Miscellaneous Case

No.13 of 2019, as expeditiously as possible, along with

all pending connected application(s), if any, positively

within three months from the date of communication

of this order to the court below.

It is made clear that the petitioners will be at

liberty to withdraw the amount of Rs.10,000/-

deposited pursuant to the impugned order by the

opposite party in the court below without prejudice to

the rights and contentions of the petitioners, over and

above the acceptance of costs of Rs.5,000/- as

directed in this order.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)