Smt. Barnali Dutta And Ors vs Somnath Mullick And Anr
2023 Latest Caselaw 170 Cal/2

OD-4
                                ORDER SHEET

                                 EC/22/2021
                              IA NO: GA/1/2021

                      IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE

                       SMT. BARNALI DUTTA AND ORS.
                                    VS
                        SOMNATH MULLICK AND ANR.


  BEFORE:
  The Hon'ble JUSTICE AJOY KUMAR MUKHERJEE

Date : 18th January, 2023 Appearance:

Mr. A.C. Kar, Sr. Adv.

Mr. Anirban Kar, Adv.

Mr. M.A. Elaahi, Adv.

Ms. Snigdha Das, Adv.

Ms. Sushmita Bhattacharjee, Adv.

Mr. Sudipta Kumar Bose, Adv.

Mr. Suvodeep Sen, Adv.

Mr. Subhankar Das, Adv.

Ms. Saheli Sen, Adv.

Mr. Arindam Paul, Adv.

Mr. Avishek Guha, Adv.

Ms. Debarati Das, Adv.

Re. GA/1/2021 :-

The Court: This is an application with a prayer to stay the execution of

the decree dated 5th July, 2017 passed in Partition & Administration Suit No.

438 of 1973 with another prayer seeking permission to challenge the report

of the Commissioner, the valuation report and the order dated 27th August,

2009 on merits and alternatively, the decree-holder in Execution Case No. 22

of 2021 be directed to include all or any of the properties being Schedule B

in the scheme for development of the premises no.237P/1B, Manicktala

Main Road, Calcutta-700054.

Petitioner contended that the applicant no.1 is a senior citizen and is

living in premises no.237P/1B, Manicktala Main Road, Calcutta-700054.

During the lifetime of the defendant no.2(b), since deceased, he used to

conduct the instant litigation along with other co-sharers of the family and

the applicants herein have neither been involved in such litigation ever, nor

were they informed anything about the same by the deceased defendant

no.2(b). As such, the applicants herein were in complete darkness about the

instant litigation and the decree was passed. It is only upon receipt of the

copy of the petition for Execution Case No. 22 of 2021 by post in the first

week of September, 2021 and upon taking legal advise thereon in the middle

of September, 2021 that the applicant no.1 came to know about the details

of the instant litigation and the consequences thereof that are looming over

them, especially over the applicant no.1, inter alia, requiring her to abandon

her residence where she came as a bride and has been residing therein since

then.

Further contention of the petitioner is that Applicant no.2 resides at

Mumbai and the properties allotted to the deceased predecessor-in-interest

of the applicants under the report of Commissioner, under the decree dated

5th July, 2009 as described in Schedule B are premises no.246B, Manicktala

Main Road, 245/1, Manicktala Main Road, premises no. 245B, Manicktala

Main Road, premises no. 237P/1C, Manicktala Main Road and premises no.

1, Marquas Square. Petitioner submits that premises no. 246B, Manicktala

Main Road was previously wheat-grinding factory later developed into a

building, premises no. 245/1, Manicktala Main Road is a bakery factory and

illegally occupied by trespassers, 245B, Manicktala Main Road is a clay-

utensil making factory and occupied by tenants, premises no. 237P/1C,

Manicktala Main Road is a pond and premises no. 1, Marquas Square is a

bustee (slum) land. Accordingly, the applicant submits that in all the

immovable properties allotted to her husband under report of the

Commissioner are not habitable and/or residential in nature. He further

submits that the right to property is now considered to be not only a

constitutional or statutory right but also human right. He further submits

that the manner in which the applicant particularly applicant no.1 has been

sought to be deprived of their right to shelter and property is violative of the

human rights attached to such property. Accordingly, the petitioner has

prayed for appointment of a Special Officer for inspection of the property

allotted to them and for stay of the execution proceeding and to give them

permission to challenge the report of the Commissioner.

The petitioner in this context has relied upon the judgments reported in

(2007) 9 SCC 705 and (2021) 6 SCC 418.

Counsel appearing for the decree-holder vehemently opposed the prayer

and contended that the preliminary decree was passed on consent. The

appeal was also dismissed. The Partition Commissioner was appointed to

conduct commission work and, accordingly, he submitted report after

conducting commission work. That report was never challenged and,

accordingly, on the basis of the Commissioner's report, the final decree was

passed. As the judgment-debtor did not act in terms of the final decree

passed in that Partition and Administration Suit No. 438 of 1973, the

present Execution Case No. 22 of 2021 was filed.

In view of the aforesaid facts and circumstances of the case, I do not find

any merit in the prayer made by the Counsel appearing on behalf of the

petitioner and, accordingly, GA/1/2021 is dismissed on contest.

Re. EC/22/2021:-

The decree-holder prays for order in terms of prayers 10(a) and 10(b) of

the application for execution of decree.

In view of the above, Mr. Ayan Kumar Boral is hereby appointed as

Receiver to take vacant possession of the area in occupation of judgment-

debtor Smt. Mita Mullick and Sumit Mullick in the 1st floor of premises

No.237P/1B, Manicktalla Main Road and hand over the same to the decree-

holder within a period of four weeks from the date of communication of the

order. Receiver's fee is fixed tentatively 300 gm, which will be borne by the

decree-holder.

Let the matter appear six weeks hence.

Later

After passing the aforesaid order the judgment-debtor prays for stay of

the execution of the order.

The prayer is considered and rejected.

(AJOY KUMAR MUKHERJEE, J.)

R.Bhar