Bijoy Krishna Maity @ Bijoy Maity & ... vs Sri Subimal Maity & Ors
2022 Latest Caselaw 6340 Cal

7.9.2022
    42
Ct. no. 652
    sb
                                  C.O. 370 of 2020


                          Bijoy Krishna Maity @ Bijoy Maity & Ors.
                                       Vs.
                               Sri Subimal Maity & Ors.


                   Mr. Tanmoy Mukherjee
                   Mr. Souvik Das
                   Mr. Rudranil Das                  ....for the petitioners




                       Affidavit of service filed by the petitioners, be kept

              with the record.

                       Being aggrieved and dissatisfied with the order no.

              168 dated 6.12.2019, passed in J. Misc. case no. 35 of

              2013 arising out of title execution case no. 51 of 1997

              pending before the Civil Judge (Junior Division), 1st

              Court, Contai, Purba Midnapore, present application has

              been preferred under Article 227 of the Constitution of

              India.

                       The petitioner contended that the petitioner's

              predecessor instituted other suit no. 353 of 1967 against

              the opposite party no 1 and his father Bibhuti Bhusan

              Maity before the court of learned Munsif, 1st Court,

              Contai and said suit was decreed on contest as against

              Bibhuti Bhusan Maity and ex parte as against the

              opposite party no. 1 to the present application and the

              decree of specific performance of agreement for sale was

              challenged in appeal being OA no. 677 of 1969 by the
                 2




opposite party no. 1 and the said appeal was dismissed

affirming the decree passed in the suit.

      The opposite party no. 1 herein filed a Misc. case

no. 124 of 1969 for setting aside the decree and the said

Misc. case though allowed but the said order allowing

Misc. case was recalled in view of the dismissal of appeal

being OA no. 677 of 1969 and against the order of

recalling passed in Misc. case, a revisional application

was filed by the opposite party no. 1 which was also

dismissed.

      The opposite party no. 1 filed regular title suit no.

226 of 1977 before the learned Munsif praying for

declaration that the property in respect of which decree

for specific performance of agreement for sale was

passed is coparcenary property and he is owner of suit

property by birth and his father had no capacity to enter

into the agreement for sale and the decree passed in suit

no. OS 353 of 1967 is illegal, void and not binding. The

said suit subsequently transferred to the Additional

Munsif court at Contai and decreed but on appeal the

said decree was reversed in Title appeal no. 2 of 1984

filed by the petitioner herein and the appeal preferred

against the said decree by the opposite party no. 1 being

SA 378 of 1988 was also dismissed by the High Court

vide judgment dated 26th April, 2019.

      The petitioner filed execution case no. 51 of 1977

before the learned Civil Judge (Junior Division) , 1st
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Court, Contai for execution of the decree passed in

aforesaid OS no. 353 of 1967 but the execution case was

stayed time to time in view of the prayer made by the

opposite party no. 1 for bringing of stay of the execution

case and later objection filed against the execution case

which gave rise to J. Misc. case no. 20 of 2011 and the

said Misc. case was also dismissed on 28.11.2011.

Thereafter, the sale deed was executed through court on

27.8.2012

but the bailiff could not deliver possession in

view of resistance and by order dated 8.7.2013 learned

court passed order that the bailiff report received by

court as to the decree unexecuted be kept with the

record.

The report of the bailiff shows that on 4th April,

2013 he could not deliver possession and execute the

decree as the wife of judgment debtor snatched the writ

of delivery of possession from the bailiff and tried to

assault the bailiff and he however managed to escape

from the place and lodged a written complaint to the

Inspector in charge, Contai police station and on the

basis of which, Contai police Station case no. 229 of

2013 has been initiated.

Since the decree holder was resisted and the

decree could not be executed the petitioner filed an

application under Order 21 rule 97 of the Code of Civil

Procedure praying for assistance of police for execution

of the writ of delivery of possession and a J.Misc. case 35

of 2013 was initiated by the learned court. On 9.9.2013,

judgment debtor prayed for adjournment for bringing

stay order from the Hon'ble Court and the time was

allowed by the learned court and on the next date of

hearing, the judgment debtor filed an application before

the learned court that since G.R. case no. 782 of 2013

has been initiated and pending before the Additional

Chief Judicial Magistrate, so before finalisation of the

said case and to avoid future complicity and conflicting

judicial decision, the Misc. case is required to be stayed

and there is an order of stay of execution case passed by

Hon'ble Court in SA 378 of 1998.

The learned court by order dated 10.12.2014

stayed the execution proceeding in view of the order

passed by the Hon'ble Court staying all further

proceeding in the execution case but after dismissal of

the second appeal being SA 378 of 1988, the petitioner

filed an application for hearing of the application filed by

the judgment debtor and the application filed by the

opposite party no. 1 was taken up for hearing and by

impugned order dated 6.12.2019, learned Judge allowed

the prayer of the judgment debtor exempting them to file

written objection on affidavit till disposal of the GR case

no. 782/2013 and stayed the execution case pending

disposed of the G.R. case.

Perused the impugned order, it appears that the

GR case has got no connection with the present

execution case being Misc. case no. 35 of 2013. Learned

court below has committed gross error and miscarriage

of justice in allowing judgment debtor's prayer thereby

exempting judgment debtor to file his written objection

till disposal of the GR case no. 782 of 2013. Said G.R.

Case is completely a separate proceeding which arose

when an attempt was made by baliff to deliver

possession, and baliff was allegedly resisted illegally for

which said criminal proceeding has been imitated.

Present Misc. Case relates to execution of decree through

police help, and said criminal proceeding has got no

relation with the civil proceeding for execution of the

decree, with the help of police.

Having considered the facts and circumstances of

the case, impugned order no. 168 of 2019 is hereby set

aside with a direction upon the learned Civil Judge

(Junior Division), 1st court, Contai, Purba Midnapore to

dispose of the J. Misc. case no. 35 of 2013 within a

period of six months from the date of communication of

the order.

Accordingly, C.O. 370 of 2020 is disposed of.

Urgent photostat certified copy of the order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)