Dilip Kumar Nath And Others vs Abdul Kazi Mondal And Others
2021 Latest Caselaw 3515 Cal

AD. 88.

June 30, 2021.

MNS.

C. O. No. 1217 of 2021 (Via video conference)

Dilip Kumar Nath and others Vs.

Abdul Kazi Mondal and others

Mr. Surya Prasad Chattopadhyay, Mr. Arjun Samanta

... for the petitioners.

The petitioners have made out a prima

facie case as to the executing court having

refused to exercise jurisdiction vested in it by law

in rejecting the petitioners' second execution

case, filed pursuant to the liberty given by this

Court, at the inception on the ground of

maintainability merely on the finding that there

was no material to suggest that the decree-holder

had been dispossessed from the suit property by

the judgment-debtor subsequent to the passing of

the decree in Title Suit No. 36 of 2011, in

connection with which the execution case arose.

Since the decree passed in the said suit

categorically records the petitioners' possession

in respect of the disputed property at that

juncture, the executing court apparently ought to

have granted the relief as prayed for within the

purview of Order XXI Rule 32 of the Code of Civil

Procedure upon hearing the execution case on

merits, instead of rejecting it at the outset as not

maintainable.

This revisional application is, accordingly,

required to be heard on merits on the above

question.

The petitioners shall serve copies of the

revisional application on the opposite parties

indicating that the matter shall next be enlisted for

hearing on July 13, 2021, when the petitioners

shall file an affidavit-of-service.

(Sabyasachi Bhattacharyya, J.)