Shipra Bhattacharjee & Anr vs Sambhu Mukherjee & Ors
2023 Latest Caselaw 5008 Cal

14.08.2023

Item No.06 CP/GB C.O. 3475 of 2022

Shipra Bhattacharjee & anr.

Vs.

Sambhu Mukherjee & ors.

Mr. Vivek Jyoti Basu Mr. Uttam Kr. De Ms. Oindrila Ghosal

... for the Petitioners.

Despite service on several occasions, none

appears on behalf of the opposite parties/judgment

debtors before this court, even today.

The petitioner is aggrieved by an order passed

in Title Execution Case No.03 of 2018. By the order

impugned, the application filed by the decree holder

to deposit Rs.32,000/- being the balance

consideration money, was rejected.

It appears that the opposite parties have not

been appearing in Title Execution Case No. 3 of 2018

which is pending before the learned Small Causes

Court at Sealdah. An insertion in the newspaper with

regard to the said execution case arising out of

judgment and decree passed in Title Suit No. 91 of

1995 has also been made on December 13, 2020.

Despite such insertion in the newspapers, the

judgment debtors did not appear before the court.

By a judgment and decree dated September 25,

2008, the suit filed by the petitioners had been

allowed on consent against the defendant nos. 2 on

contest against the defendant Nos. 5, 6 and 7 and ex

parte against the rest of the defendants.

The plaintiffs got a decree for specific

performance of contract pursuant to an agreement

dated September 29, 1992 on payment of balance

consideration money amounting to Rs.32,000/-. The

heirs of the deceased defendant no. 1, were directed

to execute the sale deed in respect of the suit

property in favour of the petitioner, to the extent of

the share of the deceased defendant no. 1 as carved

out in Title Suit No. 89 of 1994.

Title Suit No. 89 of 1994 was a suit for

partition. The sale was made subject to the decision

in the partition suit. The court further directed that

the plaintiffs would pay the balance consideration

amount of Rs.32,000/- within one month from the

decision in the partition suit. Within another one

month from the date of deposit of the balance

consideration, the legal heirs of late Rajubala

Mukherjee, shall execute the sale deed.

It is submitted that against the judgment and

decree passed in Title Suit No.91 of 1995 by the

learned Judge, Small Causes Court at Sealdah, an

appeal was preferred which was dismissed on August

17, 2016. The names of the judgment debtor nos.4

and 6 were required to be expunged from the

judgment and decree as the said names continued

despite their legal heirs having been substituted.

Such correction was made on July 6, 2019 and a

fresh decree was issued. Notice was issued upon the

judgment debtors. As the judgment debtors did not

execute the deed of sale, execution was filed. The

petitioners prayed for leave to pay up the remaining

consideration money. By an order dated April 16,

2017, the learned executing court held that the

postal receipts with regard to service upon the

judgment debtors could not be relied upon.

Accordingly, the application under Section 151 of the

Code of Civil Procedure filed by the petitioners with a

prayer for allowing delayed deposit of consideration

money, was rejected.

By order dated March 6, 2021, the learned

court recorded that despite a paper publication, the

judgment debtors had not appeared in the execution

case. The learned court fixed the matter for ex parte

hearing. Thereafter, by the order impugned dated

March 5, 2023, another application dated March 6,

2021 filed by the decree-holders for permission to

deposit the balance amount in the court, was

rejected on the ground of delay.

The only ground for rejection of the prayer for

deposit of the balance amount in execution of the

decree, was delay of five years from dismissal of title

appeal arising out of judgment and decree dated

September 25, 2008. There is nothing on record to

show that the Title Suit No.89 of 1994 which was

pending before the learned Civil Judge (Senior

Division) at Sealdah had been disposed of with the

passing of the final decree. The preliminary decree

was passed on August 31, 2016, which the learned

court below took to be the final decree in the

partition suit, whereas the learned Judge, Small

Causes Court at Sealdah specifically stated that the

plaintiff was liable to pay the balance consideration

amount of Rs.32,000/- within one month from the

decision of the partition suit being Title Suit No.89 of

1994 and within one month from such deposit, the

heirs of late Rajubala Mukherjee shall execute the

sale deed. Whether one month from the decision of

the partition suit being Title Suit No.89 of 1994

should have been interpreted as the decision with the

passing of the final decree or the preliminary decree,

should have been decided by the court instead of the

court mechanically rejecting the application. The

date which the learned court below took into account

as disposal of the partition suit was the date when

the preliminary decree was passed, that is, August

31 of 2016, as appears from the records. Final

decision of the partition suit would be the date of

disposal of the suit upon pronouncement of the final

decree. There can be more than one preliminary

decree. Moreover, the law also permits delayed

deposit of balance consideration money.

The learned counsel is not in a position to

apprise the Court either with regard to the final

decree or as to whether there was a final decision in

the partition suit. Thus, this Court is of the view that

the learned Civil Judge (Senior Division), Small

Causes Court at Sealdah could not have rejected the

application filed by the petitioners on March 6, 2021

without first ascertaining whether the final decision

was passed in the partition suit being Title Suit

No.89 of 1994, and also without considering the legal

provisions.

The order impugned is set aside on the above

grounds. The application filed by the petitioners shall

be heard afresh by the learned executing court upon

taking into consideration the final outcome of the

partition suit and also upon taking into

consideration that the delay in this case had

occurred on account of other procedural and

technical irregularities. The delay if at all, were not

entirely referable to any negligence on the part of the

decree-holders. The said application shall be heard

afresh and disposed of within a period of four months

from date of communication of this order. The period

which was consumed from the date of filing of the

application till the disposal of the revisional

application before the learned court, shall not be

taken into consideration as any delay in the prayer

made by the petitioners for deposit of the balance

consideration money.

Accordingly, the revisional application is

disposed of. The order impugned is set aside.

However, there will be no order as to costs.

All the parties are directed to act on the basis

of the server copy of this order.

(Shampa Sarkar, J.)