Janmenjay Roy & Ors vs Chabi Bhattacharjee & Ors
2022 Latest Caselaw 1056 Cal

   55
 sandip
 Ct. 18
08.03.2022

C.O. No. 3365 of 2019 I.A. No : CAN 1 of 2019 (Old No : CAN 11891 of 2019) (not in file) CAN 3 of 2021 (not in file) CAN 4 of 2022 CAN 5 of 2022 (Via Video Conference)

Janmenjay Roy & Ors.

Vs.

Chabi Bhattacharjee & Ors.

Mr. Somnath Ghoshal, Mr. Satyajit Senapati ... For the petitioners.

Mr. Ayan Banerjee, Mr. Kinkar Pandit ... For the opposite parties.

The revisional application under Article 227

of the Constitution of India is at the instance of the

judgment-debtors for a decree of eviction and is

directed against order dated August 03, 2019

passed by the 5th Court of learned Civil Judge,

(Junior Division), Howrah in Title Execution Case

No. 18 of 2016. The connected execution case has

been levied to execute the decree passed in Title

Suit No. 266 of 1997.

The judgment-debtors in the said execution

case filed an application under Order XXXIX Rules

1 and 2 of the Code of Civil Procedure for an order

of injunction restraining the judgment-debtors,

their men and agents from making any

construction/further construction on the decretal

property and from creating any third party interest

therein.

The learned Executing Court by the order

impugned has allowed the said application.

The grievance of the judgment-debtors is that

the said application was disposed of without serving

any copy to them and without giving them any

opportunity to contest the said application.

The order impugned was passed ex parte,

therefore for the ends of justice the judgment-

debtors are entitled to an opportunity to contest the

said application.

C.O. 3365 of 2019 is disposed of by by

requesting the Executing Court to decide the said

application afresh in accordance with law after

giving the judgment-debtors an opportunity to

contest it and till the disposal of the said

application, there shall be an ad interim order of

injunction restraining the judgment-debtors from

parting with the possession of the decretal property

and/or creating any third party interest therein

and/or changing the nature and character of it.

The order impugned is modified to the extent

indicated above.

It is however made clear that the Executing

Court shall dispose of the said application without

being influenced by the fact that this Court has

retained the order of injunction till the disposal of

the application.

In view of the nature of the said application,

it is expected that the learned Executing Court shall

make all endeavour to dispose of the said

application expeditiously as possible.

The connected applications being I.A. No :

CAN 1 of 2019 (Old No : CAN 11891 of 2019), CAN

3 of 2021, CAN 4 of 2022 and CAN 5 of 2022 are

disposed of accordingly.

There shall be no 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.)