Somenath Das & Ors vs Biswanath Sasmal
2021 Latest Caselaw 3785 Cal

  6&7
14.07.2021

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In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side

C.O. No. 336 of 2020

Somenath Das & Ors.

Vs.

Biswanath Sasmal

With

C.O. NO. 342 of 2020

Somenath Das & Ors.

-Vs.-

Smt. Mina Rani Karmakar

(Via video conference)

Mr. Prantick Ghosh ...for the petitioners

Mr. Prabir Adhya ...for the opposite party in both the matters

The petitioners in both the revisional

applications are decree-holders in respect of

eviction suits. The decrees having been obtained

ex parte, proceedings under Order IX Rule 13 of

the Code of Civil Procedure were taken out by the

opposite party in each of the cases, in connection

with which applications for stay were filed. While

granting stay by the impugned orders, the

executing court merely directed Rs.10,000/- to be

paid lump sum by the judgment debtors as

'security deposit' as a condition for grant of stay.

Learned counsel appearing for the

petitioners contends that, in general, monthly

occupation charges are directed to be

deposited/paid as a condition precedent of stay

orders passed in respect of operation of eviction

decrees. Moreover, it is argued that the sum

awarded is paltry and not commensurate with the

location of the premises-in-question.

Learned counsel appearing for the opposite

party in each case argues that there is no hard-

and-fast rule as regards the nature of payment

directed as a condition of stay. That apart, it is

contended that the opposite party in each of the

revisional applications are financially weak and do

not have the capacity to pay more occupation

charges than already directed.

Upon hearing learned counsel for the

parties, it is evident that the judgment relied on by

the executing court as well as by the petitioners

pertained to conditions of stay orders passed in

connection with appeals against eviction decrees.

In fact, Order XLI Rule 5 of the Code of Civil

Procedure, which deals with appeals, specifically

confers such power of imposing conditions while

granting stay of eviction decrees. However, such

provision is not applicable in terms to an

application under Order IX Rule 13 of the Code.

However, since the effect of the said order is to

stall the execution of the eviction decree obtained

by the decree-holders, the executing court was

justified in granting Rs.10,000/- an one-time

payment as a condition for stay.

However, keeping in view the indigent

condition of the opposite parties in each of the

revisional applications, this Court does not find

any illegality in granting one-time payment of

Rs.10,000/-, but, keeping in balance the suffering

of the decree-holders due to delay in execution of

the eviction decree, the opposite party in each of

the revisional applications, bearing C.O. No. 336

of 2020 and C.O. NO. 342 of 2020 respectively,

are directed to pay to the petitioners in both the

revisional applications an amount of Rs.5,000/-

(Rupees Five Thousand only) each within a

fortnight from date.

Liberty is granted to the petitioners in both

the revisional applications to withdraw the

occupation charges of Rs.10,000/-, already

deposited by the opposite party in each of the

cases, without prejudice to the rights and

contentions of the parties.

The court below is requested to dispose of

the miscellaneous cases, arising out of the

proceeding under Order IX Rule 13 of the Code of

Civil Procedure, as expeditiously as possible,

positively within two months from the date of

communication of this order to the court below.

In default of payment of Rs.5,000/- in each

of the revisional applications, by the opposite

parties to the petitioners in each of the cases,

directly or through the learned advocates

appearing for the petitioners either in this Court

or in the court below, the order of stay granted by

the impugned order in each of the matters, shall

automatically stand vacated without further

reference to Court.

With the aforesaid directions, boththe

revisional applications, bearing C.O. No. 336 of

2020 and C.O. NO. 342 of 2020, are disposed of.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance of all necessary

formalities.

(Sabyasachi Bhattacharyya, J.)