Calcutta High Court (Appellete Side)
Samir Dey & Ors vs Sri Netai Debnath & Ors on 18 April, 2023
18.4.2023
18
Ct. no. 652
sb
CO 665 of 2021
Samir Dey & Ors.
Vs.
Sri Netai Debnath & Ors.
Mr. Kaushik Dey
Mr. Prabir Adhya
Ms. Madhumanti Chakraborty ...for the petitioners
Mr. Achyut Basu
Ms. Punam Basu
Ms. Phitha Biswas ...for the O.P. nos. 1 to 3
Affidavit of service filed by the petitioners is taken
on record.
Challenging the order dated 10.12.2019 and order
dated 23.2.2021 passed by the learned Civil Judge
(Junior Division), Nabadwip, Nadia in Title Execution case
no. 10 of 2019 arising out of Title Suit no. 134 of 2001 in
a suit for khas possession under Section 6 of the Specific
Relief Act, the present application under Article 227 of the
Constitution of India has been preferred by the petitioner.
Learned counsel for the petitioners submits that the
plaintiff/opposite party herein filed aforesaid suit for khas
possession under Section 6 of the Specific Relief Act
claiming their ownership of the scheduled property
through purchase by registered deed dated 30.4.2001.
Father of the present petitioner being the defendant of the
said suit filed written statement denying all allegations
2
and it is their specific case that the suit property is a
debattar property and not a secular property and it is also
denied that the opposite party no. 1 was in possession of
the suit room. The said suit was decreed in favour of the
plaintiff/opposite parties. The petitioners preferred
revisional application before this court against the said
judgment and decree dated 16.1.2019 and after hearing
both the parties, this court granted liberty to the
petitioner to file regular civil suit and/or exhaust other
remedies available to the petitioners. Pursuant to the said
order, the petitioners filed T.S. 136 of 2019 wherein they
have also filed petition for injunction and learned court,
after hearing, was pleased to grant ad interim order of
status quo in respect of the nature, character and
possession of the "kha" schedule property.
In the meantime, the opposite party herein filed
aforesaid Title Execution case no. 10 of 2019 in
connection with aforesaid T.S. 134 of 2001. In the said
execution proceeding, the petitioners herein filed an
application under Section 47 of the Code of Civil
Procedure and they have also filed an application for stay
of the execution proceeding of the said decree till disposal
of the petitioner's application under Section 47 of the
Code of Civil Procedure being Misc. case no. 22 of 2019.
After hearing the submissions made by both the parties,
learned court below was pleased to reject the application
for stay dated 10.1.2019.
3
Learned counsel for the petitioners submit that the
court below was erred in rejecting the petitioner's
application for stay. Learned Court below did not consider
the order of status-quo over the self-same property in
connection with Title Suit no. 136 of 2019. In fact, if the
execution proceeding is allowed to be continued, the
application filed by the petitioners under Section 47 read
with Section 151 of the Code of Civil Procedure will
become infructuous. Learned court below ought to have
disposed of the Misc. case no. 22 of 2019 under Section
47 of the Code of Civil Procedure before proceeding with
the Execution case Accordingly, he has sought for setting
aside the order impugned.
Learned counsel for the opposite parties submits
that there was no stay in proceeding with the execution
case by any court of law and as such the court below was
justified in proceeding the execution case. The petitioners
have filed said application only to drag the proceeding.
Accordingly, she submits that the order impugned does
not call for any interference.
I have considered the submissions made by both
the parties. On perusal of the impugned order dated
10.12.2019
, it appears that the court below was of the
view that if the proceeding of the execution case is stayed
in the absence of any formal order from the appellate
forum, the decree-holder will have a cause to prejudice
and he will be deprived from enjoying the fruits of the
decree. Unfortunately, the learned court below has not
stated anything about the disposal of the Misc. case being
no. 22 of 2019 under Section 47 read with Section 151 of
the Code of Civil Procedure.
In view of above, C.O. 665 of 2021 is hereby
disposed of with a direction upon the learned court below
to dispose of the Misc. case under section 47 of the code
within a period of eight weeks from the date of
communication of the order and let there be a stay of all
further proceedings of the execution case being Title
Execution case no. 10 of 2019 for a period of eight weeks
from the date of communication of this order or till
disposed of the Misc. Case No. 22 of 2019 whichever is
earlier.
Accordingly, C.O. 665 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.)
