Smt. Barnali Dutta And Ors vs Somnath Mullick And Anr
2021 Latest Caselaw 1061 Cal/2

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OD-79
                                 EC/22/2021

                     IN THE HIGH COURT AT CALCUTTA
                      Ordinary Original Civil Jurisdiction
                               ORIGINAL SIDE


                      SMT. BARNALI DUTTA AND ORS.
                                   VS
                       SOMNATH MULLICK AND ANR.


 BEFORE:
 The Hon'ble JUSTICE RAVI KRISHAN KAPUR
 Date : 23rd September, 2021.

                                       Mr. A.C.Kar, Mr. Arnab Kar, Advocates for petitioner.
                                               Mr. Avishek Guha, Advocate for respondent.

Ms. Saheli Sen, Advocate for intervenor.

The Court: This is an application for execution of a decree dated

5th July, 2017 passed in a partition and administration suit. The decree

holder is represented. The judgment debtor no.3 is also represented.

It is submitted on behalf of the decree holder that, pursuant to the

decree of the Trial Court dated 5th July, 2017 affirmed by the Appellate

Court dated 17th May, 2018 the judgment debtor no.3 was directed to

vacate a portion of the suit premises within two months from the date of

communication of the order.

The judgment debtor no.3 has failed to vacate the suit premises nor

is there any stay of the decree.

In view of the aforesaid, the decree holder prays that there be an

order in terms of prayers [c] of the Tabular Statement directing

appointment of a Receiver in respect of the portion of the suit premises

being enjoyed by the respondent no.3.

It is also submitted by Mr. Kar appearing on behalf of the decree

holder that at this stage he is only proceeding with the execution

application in so far as the judgment debtor no.3 is concerned.

Ms. Sen appears on behalf of the judgment debtor no.3 and submits

that an appeal is pending against the said order, which has been filed by

the judgment debtor no.3. It is fairly submitted by Ms. Sen appearing on

behalf of the judgment debtor no.3 that though she was a party to the

appeal filed against the original decree her client has now preferred an

independent appeal. However, it is admitted that there is no stay of the

decree.

It is an indisputable and uncontroverted fact that there has been no

stay of the decree dated 5th July, 2017 as on date.

In view of the aforesaid, there shall be and order in terms of prayer

[c] of the Tabular Statement.

Mr. Shyam Sundar Mukherjee (9830629358) is appointed as

Receiver to implement this order. The remuneration of the Receiver is fixed

at 2500 gms.

Mr. Avishek Guha appearing on behalf of the legal heirs of judgment

debtor no.2 quite apparently supporting the judgment debtor no.3 raises a

technical objection of there being an incorrect statement in the affidavit in

support of the Tabular Statement. I have considered the objection and I

find no merit in the same since the objection does not relate to the

judgment debtor no.3. In any event, liberty is granted to the decree holder

to correct and/or modify the relevant portion of the affidavit.

The Receiver is directed to act on the basis of the signed copy of this

order and file a Report on the returnable date.

Let this matter appear in the monthly list of November, 2021.

(RAVI KRISHAN KAPUR, J.)

pkd/mg.