Alias Supriya Sarcar vs Nurrul Huda Layek
2023 Latest Caselaw 5532 Cal

24.8.2023
    79
Ct. no. 652
    sb
                                    CO 1073 of 2019


                              Supriya Chowdhury Sarcar
                               Alias Supriya Sarcar
                                      Vs.
                                Nurrul Huda Layek


                   Mr. Arnab Mukherjee           ...for the Petitioner

                   Mr. Kushal Chatterjee
                   Mr. Debrup Chowdhury
                   Mr. Rishav Manna            ...for the Opposite party




                   Copy of the order no. 5 dated 8.9.2021 is taken on

              record.

                   Being aggrieved and dissatisfied with the order

              dated 16.1.2019 passed by the learned Civil Judge

              (Senior Division), 2nd Court, Alipore, South 24 Parganas

              in Money Execution Case no. 19651 of 2013, present

              application under Article 227 of the Constitution of India

              has been preferred.

                   The petitioner contended that the petitioner as

              plaintiff filed a suit for recovery of money against the

              opposite party herein. The said suit was decreed ex parte.

              The petitioner herein after passing the decree, put the

              said decree into execution which was registered as

              aforesaid Money Execution Case no. 19651 of 2013. The

              judgment debtor did not appear before the Executing

              court. Therefore, warrant of arrest was issued for
                  2




appearance of the said judgment debtor/opposite party.

Subsequently,    in   pursuant    to   the   said   order,   the

judgment debtor filed Hazira on the date of hearing but

remained unrepresented when the matter was taken up

and therefore again warrant of arrest was issued on

29.8.2017

. Subsequently, the opposite party appeared

and prayed time for filing of an affidavit. In the said

execution proceeding, the opposite party/judgment

debtor deposed that he has various immovable properties

but did not express his willingness to satisfy the decree.

In such view of the matter, the petitioner filed an

application under Order XXI rule 37 of the Code of Civil

Procedure for sending the opposite party/judgment

debtor into civil prison. The opposite party herein

contested the said application by filing written objection.

The executing court below after hearing both the parties,

rejected the application filed by the petitioner.

During hearing, it is submitted that being aggrieved

by the ex parte decree passed in the concerned Money

Suit no. 7589 of 2011, the judgment debtor/opposite

party herein filed an application for setting aside the ex

parte decree under Order IX Rule 13 of the Code.

Subsequently the said application under Order IX rule 13

got dismissed for default. The opposite party prayed for

restoration of the said application which was also rejected

by the court. Being aggrieved by that order, the opposite

party preferred Misc. Appeal no. 54 of 2021 which is

pending before the learned Additional District Judge, 3rd

Court, Alipore. It is further submitted that the learned

Additional District Judge, 3rd Court, Alipore by order no.

5 dated 8.9.2021, was pleased to pass an order that the

aforesaid money execution case no. 19651 of 2013

pending before the court of learned Civil Judge (Senior

Division), 2nd Court, Alipore, South 24 Parganas, shall be

stayed till disposal of the limitation petition pending in

the Misc. appeal.

In the aforesaid facts and circumstances of the

case, when the order impugned has a direct bearing upon

the fate of Misc. Appeal and since the Appellate court has

already stayed the execution proceeding till disposal of

Section 5 application and since said Section 5 application

has not yet been disposed of, I find no merit to keep the

present application pending for an indefinite period.

Moreover, during pendency of said application under

Section 5, it might have been a futile exercise on the part

of this court to go on merit in order to decide the issue.

Accordingly invoking jurisdiction under Article 227 of the

Constitution of India, present application is hereby

disposed of with a direction to the learned Additional

District Judge, 3rd Court, Alipore to dispose of the

opposite party's application under Section 5 of the

Limitation Act positively within a period of four weeks

from the date of communication of the order. I have made

it clear that since I have not gone into the merit of the

Application, this order will not preclude petitioner/the

decree holder to prefer appropriate fresh application in

future in case of survival of decree before the concerned

executing court if situation demands.

C.O. 1073 of 2019 is accordingly 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.)