Usha Chowdhury & Anr vs Uma Shankar Bhagat @ Usha Shankar ...
2021 Latest Caselaw 132 Cal

12.01.2021                              FAT 403 of 2018
Court No. 02
                                             with
Item No. DL - 51
nandy
                                         CAN 1 of 2018
                                         (CAN 6334 of 2018)
(ORDER PASSED)
                                             with
                                         CAN 2 of 2020
                                         (CAN 2049 of 2020)


                                Usha Chowdhury & Anr.
                                          Vs.
                       Uma Shankar Bhagat @ Usha Shankar Bhagat

                   Mr. Jiban Ratan Chatterjee, Senior Advocate
                   Mr. Sounak Bhattacharya, Advocate
                                                   ......for the Appellant
                   Mr. Probal Kumar Mukherjee, Senior Advocate
                   Mr. Dipayan Kundu, Advocate
                                          ......for the Respondent No. 1

CAN 1 of 2018 (CAN 6334 of 2018)

This is an application for stay of operation of the impugned judgment and decree dated May 17, 2018 passed by the learned Civil Judge (Senior Division), First Court, Malda in OC No. 205 of 2008 till the disposal of the instant appeal.

An ad interim order of stay, granted by this Court, is still operative. Today when this application is taken up it is informed to this Court that before the ad interim order of stay was passed an execution proceeding was launched which gave rise to Execution Case No. 06 of 2018.

The learned Advocate for the appellant submits that because of the changed circumstances, the prayer can be moulded by this Court and the aforesaid execution case may be stayed till the disposal of the instant appeal.

The learned Advocate appearing for the plaintiff/ decree-holder/respondent submits that pursuant to the impugned judgment and decree, the entire consideration money as directed by the trial Court is deposited with the executing Court. He further submits that the plaintiff is merrily enjoying the property despite having suffered a decree and, therefore, the blanket order of stay of the execution proceeding should not be passed.

Since the plaintiff/decree-holder/respondent has already deposited the balance consideration money in terms of the impugned judgment and decree with the executing Court, the executing Court shall invest the said amount in an interest bearing fixed deposit in any nationalized bank and shall continue to renew the same until further order to be passed in the instant appeal.

It is no doubt true that the decree originates from a suit for specific performance for sale of an immoveable property. The first appeal is a statutory right and if the execution case is allowed to be proceeded with, it would frustrate the purpose. Equally, we cannot overlook that a successful litigant has to wait for the fruits of the decree because the statute has provided a right of appeal to an unsuccessful litigant. There is no fetter on the part of the Court to strike a balance between the rights of the parties to the proceeding by imposing a condition while disposing of an application for stay. The appellant is enjoying the property and in absence of standard of proof that what

such property would fetch, there is no difficulty on the part of the appellate Court to apply robust common sense.

The appellant is thus directed to deposit a sum of Rs.2 lakhs with the Registrar General of this Court within six weeks from date to show his bona fide. The Registrar General shall invest the said amount in an interest bearing fixed deposit in any nationalized bank and shall continue to renew the same until further order to be passed in the instant appeal.

Subject to the compliance as aforesaid, there shall be a stay of all further proceeding in Execution Case No. 6 of 2018 pending before the First Court of Civil Judge (Senior Division), Malda till the disposal of the instant appeal.

In default of the deposit as indicated above, the stay as granted above, shall stand automatically vacated and it will be open to the plaintiff/ decree- holder/respondent to proceed with the execution case irrespective of the fact that the appeal is pending before this Court.

The application for stay being CAN 1 of 2018 (CAN 6334 of 2018) is thus disposed of.

CAN 2 of 2020 (CAN 2049 of 2020)

This is an application at the behest of the plaintiff/decree-holder/respondent alleging that taking advantage of a suit having disposed of, the appellants

are trying to encumber the property to a third party to defeat the original claim adjudicated and determined in his favour.

Mr. Chatterjee, learned senior Advocate, appearing for the appellant submits that there is no intention of his client to sale, transfer and alienate the property to a third party and, therefore, the allegations made in the said application is a pure myth.

Considering the fact that the suit for specific performance has been decreed, if any right in favour of a third party is created, it would invite an cumbersome situation.

The appellant is thus restrained from transferring, alienating, encumbering and/or dealing with the property in any manner whatsoever till the disposal of the instant appeal.

The application for stay being CAN 2 of 2020 (CAN 2049 of 2020) is thus disposed of.

Let the Lower Court Record be called for by Special Messenger at the cost of the appellant. The appellant is directed to put in the Special Messenger Cost for bringing the Lower Court Record within a week from date.

Upon deposit of such cost, Office shall bring the Lower Court Record by Special Messenger immediately. After arrival of the LCR, the department shall examine the same and if found complete, shall put a seal in this regard. The department shall ensure

that the LCR arrives to this Court within three weeks from the date of deposit of the Special Messenger Cost.

The appellants shall prepare eight copies of informal paper books - printed, typewritten or cyclostyled, as the case may be - out of court, within a period of four weeks from date. All other formalities relating to preparation of Paper books are dispensed with.

After the LCR is found complete, the department shall serve a notice upon the learned Advocate for the appellants, under Rule 12 Chapter IX of the Appellate Side Rules, within a week therefrom.

Since the plaintiff/decree-holder/respondent has already appearance, the service of notice of appeal is dispensed with. The Vakalatnama enclosed in the caveat shall be treated to have been filed in the instant appeal.

The office is directed to take immediate steps in this regard.

(Harish Tandon, J.)

(Kausik Chanda, J.)