Sunil Shaw vs Zubaida Hamid
2022 Latest Caselaw 3602 Cal

13    27.06.
RKB   2022
Ct
07                                C.O. 1442 of 2022

                                       Sunil Shaw
                                           Vs
                                     Zubaida Hamid


               Mr. Tapas Kumar Mondal,
               Mr. Mritunjay Saha.
                                   ... For the petitioner.

               Mr. Wasim Ahmed,
               Ms. Kaynat Parveen.      ... For the respondent No.1.

The subject matter of challenge in this revisional

application is against the rejection of a petition praying

for addition of parties under Order 1 Rule 10 of the

Code of Civil Procedure, filed in Misc. Case No. 208 of

2017, arising out of Ejectment Suit No. 10 of 2016 of

learned Civil Judge (Junior Division), 2nd Court, Alipore,

South 24 Parganas.

Admittedly pending Misc. Case No. 208 of 2017

under Order 21 Rule 97 of the Code of Civil Procedure,

is for the police help, for resistance being raised by the

men and agents of judgment-debtors against the

execution of the decree, wherein petitioner sought to be

added under Order 1 Rule 10 of the Code of Civil

Procedure. Further admitted position is that petitioner

is not made party to a decree, granted against the

opposite party/decree-holder. That for adjudication of

independent right, petitioner has filed a separate Misc.

Case being No. 81 of 2019 under Order 21 Rules 98, 99,

100 and 101 of the Code of Civil Procedure, read with

Section 47 of the Code of Civil Procedure before the

Court below.

An ex parte order of injunction has been granted

in Misc. Case No. 81 of 2019. A prayer for police

assistance, as sought for by the petitioner for the

implementation of ad interim order of injunction, has

been granted by the Court below, in Misc. Case No. 81

of 2019.

Upon referring such facts, learned advocate for

the petitioner submits that decree has been obtained

fraudulently by opposite party/decree-holder, making

some material suppression of facts, and even without

impleading the petitioner, as one of the parties to this

suit ended in decree.

Learned advocate for the petitioner further

contends that in spite of making observation, made by

the Court below to the effect that "it would be proper to

pass police help after hearing of the Misc cases pending

before this Court in connection with the Execution cpase",

the Court below being oblivious of such pendency of

Misc. Case No. 81 of 2019, together with ad interim

order of injunction granted in favour of the petitioner,

has erroneously rejected the prayer for addition of the

party.

It is also contended by the learned advocate for

the petitioner that pending adjudication of independent

right, title and interest of the petitioner in Misc. Case

No. 81 of 2019, the Court below ought to have allowed

the proposed addition of party under Order 1 Rule 10(2)

of the Code of Civil Procedure.

Per contra, learned advocate appearing for the

caveator/opposite party submits that an application is

still pending, filed by the petitioner in Misc. Case No. 81

of 2019 praying for stay of execution of the decree,

passed by the Trial Court.

Disputing with the submission, raised by the

petitioner, learned advocate for the opposite party

submits that the Misc. Case, registered under Order 21

Rule 97 of the Code of Civil Procedure, read with Section

208 of Civil Rules and Orders, vide Misc. Case No. 208

of 2017 is an independent one, seeking police help for

the execution of the decree against the resistance, being

raised by the men and agents of the judgment-debtors.

It is thus strenuously contended by the learned

advocate appearing for the opposite party, that there is

no scope available in pending Misc. Case No. 208 of

2017 for addition of party upon resorting to Order 1

Rule 10 of the Code of Civil Procedure. The application

praying for stay of execution of a decree, having

remained pending still now, learned advocate for the

opposite party submits that impugned order does not

call for any interference.

Having considered the submission of both sides, it

appears that Misc. Case No. 208 of 2017 is relatable to

a prayer for police help in a case of resistance, or

obstruction being raised by men and agents of

judgment-debtors against the executability of the

decree, already granted by the Trial Court.

When admittedly there is a separate Misc. Case

registered under Order 21 Rules 98, 99, 100, 101 of the

Code of Civil Procedure, vide Misc. Case No. 81 of 2019,

and in connection with which, there is an application

pending for stay of execution of the decree, weherein the

apprehension disclosed by the petitioner, that in the

event of execution of decree with police help, may be

best decided.

The Court below as such is directed to dispose of

the pending application, filed by the petitioner, praying

for stay of execution of the decree, granted against

opposite party/decree-holder, expeditiously, either on

the date so scheduled by the Court below, or if for any

reasons whatsoever, the same could not be done, the

application may be disposed of peremptorily within

three (03) weeks thereafter, providing sufficient

opportunity of hearing to either of the parties to this

case.

This would not, however, prevent the opposite

party/decree-holder to pray for occupational charges, if

there be any, in accordance with provisions of law.

The prayer for stay filed by the petitioner in Misc.

Case No. 81 of 2019 needs to be disposed of

independently, irrespective of previous rejection of a

prayer for addition of party, filed by the petitioner under

Order 1 Rule 10(2) of the Code of Civil Procedure.

Petitioner is directed to make communication of

this order to the learned court below.

With this observation and direction, the revisional

application stands disposed of.

Urgent photostat certified copy of the order, if

applied for, be given to the parties on usual

undertakings.

(Subhasis Dasgupta, J)