Smt. Belarani Mahapatra vs Arati Das & Ors
2023 Latest Caselaw 4785 Cal

07.08.2023 Sl. No.211&212(ML) srm

C.O. No. 1973 of 2023 With C.O. No. 1975 of 2023

Smt. Belarani Mahapatra

Versus

Arati Das & Ors.

Mr. Gaurav Purakasta, Mr. Biplab Majumder ...for the Petitioner.

These two matters are taken up together as the issues

involved are similar, arising out the same suit, between the

same parties.

C.O. No.1973 of 2023 has been filed challenging an order

dated June 10, 2022 and C.O. No.1975 of 2023 has been filed

challenging an order dated March 21, 2023. Both the orders

were passed by the learned District Judge at Howrah in Misc.

Appeal No.180 of 2019.

By the order dated June 10, 2022, the learned lower

appellate court passed a direction upon the learned executing

court, not to physically evict the appellants.

Misc. Appeal No.180 of 2019 was filed along with an

application for condonation of delay of 2736 days in preferring

the said appeal. The application under Section 5 of the

Limitation Act was allowed by the order dated March 21, 2023

and the stay which was granted by the learned appellate court

was extended.

The background of the case is that an eviction suit was

filed by the petitioner being Title Suit No.224 of 2000. The suit

was decreed ex parte by the learned Civil Judge (Junior

Division), 4th Court at Howrah sometime in 2005. The

petitioner filed Title Execution Case No.04 of 2005. The

opposite parties filed a misc. case under Order IX Rule 13 of

the Code of Civil Procedure for setting aside the ex parte

decree. The misc. case was rejected. Against the order of

rejection, Misc. Appeal No.50 of 2006 was filed which was

allowed on contest. The order passed in misc. appeal was

challenged before the High Court by civil revisional

application being C.O. No.3374 of 2008. The High Court set

aside the order passed in misc. appeal. The ex parte decree was

not set aside. The Hon'ble Apex Court also, did not interfere

with the decision of the High Court passed in the civil

revision. Thus, the application under IX Rule 13 stood rejected

at every stage and the ex parte decree became final.

The opposite parties thereafter filed Misc. Case No.20 of

2009, being an application under Order XXI Rules 100 and 101

of the Code of Civil Procedure. The same misc. case was

dismissed for non-prosecution. Being aggrieved by such order

dated May 10, 2012, the opposite parties preferred civil

revision No.06 of 2012 before the learned District Judge at

Howrah. The said civil revision 06 of 2012 was transferred to

the court of the learned Additional District Judge, 2nd Court at

Howrah. The civil revision was dismissed on contest on July

20, 2019.

Aggrieved party approached the High Court by filing

C.O. No.2945 of 2019. The High Court while disposing of the

revisional application made the following observations and

passed necessary orders, which are quoted below:

"It appears at the outset that the revisional application was not maintainable in view of availability of an equally efficacious alternative remedy in the form of an appeal, by virtue of operation of Rule 103 of Order XXI of the code, which deems such an order of the executing court as a decree, thereby making it appealable. Accordingly, the revisional court acted without jurisdiction in entering into the merit of the matter, although otherwise the revisional court did not have jurisdiction to entertain the matter.

Accordingly, C.O. No.2945 of 2019 is disposed of on contest, thereby setting aside the order of the revisional court on the ground that the said court had no jurisdiction to enter into the merits of the matter, leaving it open to the petitioners to challenge the original order passed by the executing court dated May 10, 2012 in a properly constituted appeal before the appropriate forum, subject to condonation of delay, which may have intervened in preferring such an appeal."

On the strength of the order of the High Court, the Misc.

Appeal No.180 of 2019 along with a prayer for condonation of

delay and admission of the misc. appeal, was filed. During

pendency of the same, a limited stay from evicting the

judgment debtor from the property in the execution

proceeding was passed. Upon considering the oral evidence of

the witnesses and explanation for the delay as also the factual

matrix of the case, the learned lower appellate court allowed

the application under Section 5 of the Limitation Act and

extended the stay which was granted by order dated June 10,

2022. The court found that the delay of 2736 days occurred due

to consumption of a considerable time during the pendency of

the civil revision before the learned District Judge, which was

not maintainable under the proviso to Section 115 of the Code

of Civil Procedure and also on account of pendency of the

revisional application before the High Court.

The condonation was sought for the period between

which the application was pending before the learned

Additional District Judge, 2nd Court at Howrah and the

Hon'ble High Court. Accordingly, the delay was condoned.

Thus, this Court is not inclined to interfere with the

order impugned simply for the reason that the delay occurred

as the opposite parties were pursuing the civil revision before

a wrong forum and thereafter before the High Court.

With regard to the extension of stay, this Court is of the

view that the learned Additional District Judge, Fast Track (1st

Court), Howrah has extended the interim order, which was

already passed on June 10, 2022, directing the executing court

not to physically evict the judgment debtors. If such protection

was not given, the misc. appeal would become infructuous.

This Court does not find any reason to interfere with

either of the orders as the learned court below only restricted

eviction. The High Court had granted liberty to the judgment

debtors to challenge the order passed in the application under

Order XXI Rules 100 and 101 of the Code of Civil Procedure,

by preferring an appeal. Hence, the misc. appeal was filed. The

claim for occupational charges with all arrears, ought to have

been made before the learned lower appellate court which

granted the stay. This prayer is not entertained solely for the

reason that this prayer was not made before the learned lower

appellate court. The petitioner is at liberty to make such prayer

before the learned lower appellate court and the learned lower

appellate court shall decide such issue in accordance with law,

upon giving the parties adequate opportunity to contest.

Moreover, it is made clear that the misc. appeal should

be disposed of within a period of three months from the next

date fixed.

Both the revisional applications are, thus, disposed of.

There will be, however, no order as to costs.

Parties are to act on the basis of the server copy of this

order.

(Shampa Sarkar, J.)