Nirmal Kanti Biswas vs Sri Gouranga Das & Anr
2023 Latest Caselaw 2594 Cal

 17.4.2023
     12
Ct. no. 652
    sb
                                    CO 1997 of 2021


                                  Nirmal Kanti Biswas
                                         Vs.
                                 Sri Gouranga Das & Anr.


                    Mr. Amal Krishna Saha
                    Mr. Souvik Sarkar           ...for the petitioner



                    Affidavit of service filed by the petitioner is taken on

              record. Opposite parties are not represented.

                    Being aggrieved by four orders namely Order no.

              47, 48, 49 and 50 passed by the learned Civil Judge

              (Senior Division), 1st Court, Barasat in Misc. case no. 101

              of 2018 arising out of Title Execution case no. 3 of 2009,

              the decree holder has preferred this application under

              Article 227 of the Constitution of India.

                    The petitioner's main contention is that he filed

              Title suit no. 37 of 1999 before the learned Civil Judge

              (Senior Division), 1st Court, Barasat and said suit was

              decreed in favour of the plaintiff and the defendant of the

              said suit was directed to pay Rs. 2,90,640/- with interest

              within four months. As the decreetal amount was not

              paid within the statutory period, the petitioner filed Title

              Execution case no. 3 of 2009 for recovery of an amount of

              Rs. 4,48,750.60/- (principal, interest and cost).

                    The opposite party no. 1 filed Misc. Case no. 345 of

              2009 under Order IX Rule 13 of the Code of Civil
                   2




Procedure for setting aside the decree. The said Misc.

case was dismissed by the trial court and the order of

dismissal was affirmed by this court in FMAT 141 of

2017. The judgment-debtor/opposite party herein filed an

application under Section 47 of the Code being aforesaid

Misc.    case   no.   101/2018   in   the   said   Execution

proceeding. On an application for stay, the court below

was pleased to stay the execution case pending disposal

of the said Misc. case. Against that order, the decree-

holder preferred a revisional application before this court

being C.O. 1270 of 2019 and this court was pleased to

direct the court below for re-hearing of stay application

and court below, after re-hearing the said application,

was pleased to grant stay on condition that the judgment-

debtor shall deposit the entire decreetal amount within

next date i.e. 18.1.2020. The judgement-debtors who are

opposite parties herein, did not comply the said order

dated 18.12.2019 as reflected in order no. 47 dated

18.1.2020

and accordingly, the executing court was

pleased to direct that the execution case shall proceed in

accordance with law.

However, learned counsel for the petitioner submits

that though it was observed by the court below, that the

execution case shall proceed in accordance with law as

the judgment-debtor has not deposited decreetal amount

in terms of order no. 46 but he has not fixed any date for

the execution proceeding being Title execution case no. 3

of 2009 and on the contrary, he is proceeding with the

Misc. case only, filed by the judgment-debtor under

Section 47 of the Code. Accordingly, the petitioner herein

has prayed for a direction upon the court below for

disposal of the said Execution case at the earliest.

Since the prayer made by the petitioner is very

innocuous and justified, C.O. 1997 of 2021 is disposed of

with a direction upon the court below to make all

endeavour for expeditious disposal of the Title execution

case no. 3 of 2009, which is pending before the learned

Civil Judge (Senior Division), 1st Court, Barasat and to

conclude the entire proceeding of the said Execution case

preferably within a period of twelve weeks from the date of

communication of the order.

Accordingly, C.O. 1997 of 2021 is disposed of.

Urgent photostat certified copy of this order, if

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

requisite formalities.

(Ajoy Kumar Mukherjee, J.)