Raju Kundu vs Shaila Devi Shaw & Ors
2022 Latest Caselaw 4222 Cal

   25
 sandip
 Ct. 18
14.07.2022

C.O. No. 1851 of 2022

Raju Kundu Vs.

Shaila Devi Shaw & Ors.

Mr. Rajdeep Bhattacharya ... For the petitioner.

The petitioner was the substituted decree-holder of the

decree of eviction passed in the Ejectment Suit No 30 of

2008.

The judgment-debtors during the pendency of the

appeal against the decree passed in the suit were put into

terms to deposit occupational charges to enjoy the stay of

the further proceeding of the execution case levied to

execute the said eviction decree.

The decree on attaining finality after dismissal of the

Title Appeal and the Second Appeal, was satisfied in full in

execution thereof.

The petitioner applied in the disposed of suit seeking

permission to withdraw the said occupational charges.

The learned Trial Judge by the order impugned being

order no. 89 dated January 11, 2021 has dismissed the

said application holding that the petitioner has failed to

specify the amount sought to be withdrawn.

The dismissal of the said application on the said ground

alone is not justified. However, the occupational charges

were deposited after the disposal of the suit, therefore,

must have been in the Execution case, as such, the

application for withdrawal of the said deposits should have

been made in the file of the Execution case, not in the file

of the suit.

The order impugned, for the aforesaid reason, although

is not interfered with, but the same would not stand in the

way of the petitioner to apply for the withdrawal of the said

deposits in the file of the Execution case levied to execute

the decree of eviction passed in the aforementioned suit.

If such an application is filed, the Court below is

directed to allow the petitioner to withdraw the said

deposits subject to verification of the identity of the

petitioner to the satisfaction of the Court.

C.O. 1851 of 2022 is disposed of with the above terms

without any order as to costs.

Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties subject to compliance with

all requisite formalities.

(Biswajit Basu, J.)