Calcutta High Court (Appellete Side)
652 2023 Smt. Rukmini Dutta vs 81 Smt. Jyotsna Kundu & Ors on 3 August, 2023
Ct.
No. 03.8 C.O. 1047 of 2015
652 2023 Smt. Rukmini Dutta
-Versus-
81 Smt. Jyotsna Kundu & Ors.
akb
Mr. Arnab Dutt
Ms. Labani Dey ...For the Petitioners
Affidavit-of-service filed by the petitioner is taken
on record. Despite service, opposite parties are not
represented.
This is an application under Article 227 of the
Constitution of India against the order No. 200 dated 7th
January, 2015 passed by the learned Judge, 2nd Bench of the
City Civil Court at Calcutta in Title Suit No. 318 of 1989.
Petitioner contended that the plaintiff and the
father of the opposite parties / substituted defendant Nos.
2(a) and 2(b) have instituted the instant Title Suit No. 318 of
1989, inter alia, praying for a decree for partition for the suit
premises amongst its co-sharers claiming, thereby that
plaintiffs have 50% share in the suit premises.
Petitioner submits that the plaintiffs are not the
family members of the petitioner herein and the defendants
jointly have the other 50% share in the suit premises. The
plaintiffs originally were the monthly tenants and are in
physical possession of a room in the ground floor and a room
in the first floor and taking such advantage of having
possession in the suit premises they purchased undivided
50% share of the suit premises from the other co-sharers of
the defendants inclusive the petitioner herein. Since,
plaintiffs are stranger purchasers, the defendant No. 1 /
petitioner herein moved an application under Section 4 of the
Partition Act on 6th July, 1989 for an order directing the
plaintiffs to sell their undivided half share to the petitioner at
a reasonable consideration price as may be determined by
the Court. The said application was contested and it was
inter alia directed by the Court below to dispose of the
application along with the final hearing of the suit.
The defendants thereafter duly contested the suit
by filing written statement and the suit was ultimately
disposed of by a judgment and decree dated 24th June, 2011
whereby the application dated 6th July, 1989 filed by the
defendant No. 1 under Section 4 of the Partition Act was
allowed on contest and liberty was given to the defendant
No. 1 / petitioner herein to buy up the share of the plaintiffs
to the extent of 50% in the suit premises. Accordingly, the
defendant No. 1 was directed to deposit Rs. 3,000/- as
provisional cost for appointment of Valuation
Commissioner. The petitioner accordingly deposited the
cost of the Commission and the commissioner has submitted
his final valuation report on 7th February, 2013 in the Court
below. Petitioner submits that the Valuer after considering
all aspect arrived at the valuation of the suit premises at Rs.
13,44,000/-.
On the basis of such valuation the petitioner filed
an application under Order XX, Rule 14 read with Section
151 of the Code of Civil Procedure praying for a leave to
deposit the purchase money of Rs. 6,72,000/- (50% of the
valuation price) in Court or to the plaintiff and petitioenr
also sought for direction to execute and register a proper
Deed of Conveyance in her favour in respect of 50% share in
the suit premises. The said appliction under Order XX, Rule
14 of the Code was finally heard by the Court below and by
the impugned order the Court below rejected the defendant
No. 1's application under Order XX, Rule 14 observing that
First Appeal is pending before the Hon'ble high Court, being
F.A.T. 490 of 2011 against the impugned judgment and
decree dated 24th June, 2011 where the defendant No. 1, i.e.
petitioner herein has also entered appearance. Court below
further observed since the valuation is also under challenge
in the said appeal so the application filed by the defendant
No. 1, petitioner herein, under Order XX, Rule 14 is
premature and if it is disposed of at this stage, it may
frustrate the object of filing the appeal.
The learned Counsel appearing on behalf of the
petitioner by filing a supplementary affidavit contended that
no stay has yet been granted by the High Court in the
aforesaid appeal, being F.A.T. 490 of 2011, which was filed
almost 12 years back. He further submits that the Court
below has exercised it jurisdiction illegally and with material
irregularities in rejecting the application under Order XX,
Rule 14 of the Code observing that the application has been
filed at a premature stage but did not consider at all the
settled proposition of law which states without any stay
order granted by the higher forum, learned Court below must
proceed with the proceeding.
He further submits that the appeal has been filed
long back in the year 2011 and it was filed defective and
appellants did not care to remove the defects or to take steps
for 'F.A. number' and the appeal is still registered as 'F.A.T.
number'. The plaintiff petitioner simply to harass the
defendants / petitioner has preferred the aforesaid appeal
which is misconceived and as such prayed for allowing the
present application with necessary direction.
Having considered the facts and circumstances of
the case and also considering the submissions made by the
petitioner that no stay order has yet been granted by the
Appellate Court I find that the order impugned passed by the
Court below observing that the application filed by the
defendant No. 1 / petitioner under Order XX, Rule 14 is
premature is a perverse finding. This is because stay by
appellate Court is discretionary. Mere filing of appeal does
not operate as stay. The reason is that the rights of the
decree-holder having been determined by a competent Court,
it is not fair that he should be deprived of the fruits of the
decree merely because the judgment debtor prefers an appeal
against the decree. Here appeal was filed in 2011 and the
appellant has kept it pending for more than twelve years
without taking any initiative to get it disposed of. It is
settled proposition of law that unless and until a stay is
granted by the Appellate Forum there is no impediment for
the Court below to proceed with the application. In such
view of the matter the order impugned, being No. 200 dated
7th January, 2015 passed in Title Suit No. 318 of 1989 is
hereby set aside.
The Court below is directed to ask the defendant
No. 1 / petitioner to file an affidavit that no stay as on that
date has been granted in the appeal, being F.A.T. 490 of
2011 within a period of three weeks from the date of
communication of this order. On filing such affidavit, the
Court below will consider the defendant No. 1 / petitioner's
application under Order XX, Rule 14 of the Code afresh and
to dispose of the same in accordance with law.
The revisional application, being C.O. 1047 of
2018 is thus disposed of.
Urgent photostat certified copy of this order, if
applied for, be supplied to the petitioner, on priority basis on
compliance of all usual formalities.
( Ajoy Kumar Mukherjee, J.)
