Calcutta High Court
Smt. Srila Dutta vs Smt. Kanta Devi Bhutoria & Ors on 16 March, 2021
1
E.C No. 196 of 2020
CS 451 of 1989
IN THE HIGH COURT AT CALCUTTA
Original Civil Jurisdiction
Original Side
Smt. Srila Dutta
V.
Smt. Kanta Devi Bhutoria & Ors.
For the Petitioner : Mr. Mr. A.K. Awasthi, Advocate
Mr. Aishwarya Kumar Awasthi,
Advocate
For the Respondent : Mr. Jishnu Chowdhury, Advocate
Mr. Nikunj Berlia, Advocate
Mr. Aritra Basu, Advocate
Mr. Anshu Jain, Advocate
Hearing concluded on : March 11, 2021
Judgment on : March 16, 2021
DEBANGSU BASAK, J. :-
1. In the execution petition, two issues arose for consideration.
One issue was with regard to the actual delivery of possession of the
suit premises to the decree holder in terms of the decree as modified.
The other issue was the fixation of the date of possession. These two
issues were framed and noted in the order dated February 11, 2021.
2. By the order dated February 11, 2021, after recording the
contentions of the parties to the execution petition, on both the issues,
so far as delivery of the possession of the suit premises was
concerned, orders in terms of prayers (b) and (c) of the Column 10 of
the statement of the execution petition were granted.
3. Learned Advocate appearing for the decree holder submitted
that, the decree holder obtained possession of two garages, covered
space on the ground floor and the open space on the ground floor on
February 20, 2021. However, the date of possession can be construed
to be on February 11, 2021 being the date of the order for making over
possession.
4. Since, the rival contentions were recorded in the order dated
February 11, 2021, and the parties did not advance any new
contentions the same are not reproduced herein.
5. The issue as to the fixation of the date of possession remained
outstanding and the same is required to be decided now.
6. A decree for eviction was passed on October 16, 2015 which
was modified on September 6, 2019. In terms of the decree, the decree
holder was to obtain possession of the flat on the third floor, a covered
area on the ground floor and two garages along with other spaces.
7. The judgment debtor filed an appeal and a stay application in
connection with the decree in the suit. An order dated February 3,
2016 was passed recording the undertaking of the decree holder to
vacate the suit premises and make over possession thereof to the
decree holder without prejudice to the rights and contentions in the
appeal. The decree holder admitted of having taken possession of the
flat on the third floor on February 3, 2016 subsequent to the decree
dated October 16, 2015.Subsequent thereto by a letter dated February
11, 2016 issued by the decree holder to the then Advocate on Record
of the judgment debtor the decree holder asked for possession of the
balance area. The judgement debtor did not respond thereto.
8. According to the judgment debtor, possession was made over
on February 3, 2016. According to the decree holder, only one key for
the third floor flat was made over to the decree holder. The judgment
debtor did not make over possession of the two garages, covered area
and the open spaces being the balance portions under the decree.
9. The decree subsisting between the parties required
determination of mesne profit. In the statement of claim filed before
the learned Commissioner for ascertaining the mesne profits, the
decree holders stated that they were willing to forgo the claim for
mesne profits for the garages on and from February 4, 2016 in the
event, the judgment debtors confirmed that the possession of the two
garages were made over with effect from February 3, 2016, in writing,
and before filing their statement of defence. The judgment debtors did
not accept such offer. The judgment debtors did not write any letter to
the decree holder confirming that they made over possession of the
balance portion of the decreetal area to the decree holders on
February 3, 2016. The judgment debtors filed a statement of defence
before the learned Commissioner deciding the issue of mesne profits
where the judgment debtors took the stand that the garage was not
under lock and key and that the decree holders took possession
thereof. However, the judgement debtors did not provide any specific
date when they made over of possession or any evidence of making
over possession, to the decree holders.
10. From the averments of the petition and the affidavit, it
appeared that, the judgment debtors did not deny the allegation that
one Mr. Pandey of the judgment debtors was holding on to the keys
with relation to the garages and that the judgment debtors was not
making over possession of the same.
11. The judgment debtors suffered the decree for eviction. The
decree is binding on decree holder as well as the judgment debtor. The
judgment debtors are also under no less an obligation than the decree
holder to ensure that the decree is executed. The decree holders
claimed that they were not given possession of the suit premises apart
from the third floor flat, in terms of the decree. The judgment debtors
did not state in writing that, they made over possession of every part
and portion of the suit premises, in terms of the decree, on February
3, 2012 despite an offer being made by the decree holder in the
statement of claim before the learned Commissioner. It is only through
Court and in this execution petition that, the decree holder obtained
possession of the balance area. In the facts of the present case, it is
therefore held that, the decree holder obtained possession of the
entirety of the suit premises in terms of the decree dated October 16,
2015 as modified on September 6, 2019 on February 11, 2021.
12. EC 196 of 2020 is therefore disposed of.
[DEBANGSU BASAK, J.]
