Smt. Shanti Shaw @ Devi & Anr vs Sri Amit Dasgupta & Anr
2023 Latest Caselaw 233 Cal

S/L 185
09.01.2023

Court No.652 SD CO 2318 of 2022 With CO 2319 of 2022

Smt. Shanti Shaw @ Devi & Anr.

Vs.

Sri Amit Dasgupta & Anr.

Mr. Sayantan Bose Ms. Madhurima Das Ms. Ankita Chaudhury Mr. Sattik Raut ... for the Petitioners.

Mr. Sauradipta Banerjee Ms. Fatima Hassan ... for the Opposite Parties.

This is an application under Section 24 of the Code of

Civil Procedure seeking transfer of Miscellaneous Case No.157

of 2017 along with all connected applications from the Court of

learned 4th Bench, Presidency Small Causes Court at Calcutta to

the Court of learned Chief Judge, Presidency Small Causes

Court.

Petitioners contended that the execution proceeding is

pending since long. Originally decree-holder as plaintiff filed

ejectment suit being Ejectment Suit No.80 of 2011 and the

opposite party herein contested the said suit by filing written

statement. The suit was finally decreed on February 28, 2017

in favour of the petitioners herein with a direction upon the

opposite party herein to hand over and deliver khas possession

of the suit property in favour of the plaintiffs/petitioners within

a period of two months from the date of passing of the said

decree.

The opposite parties failed to deliver vacant possession

of the suit property in terms of the decree and therefore, the

petitioners put the decree into execution on May 3, 2017 by

filing Execution Case No.58 of 2017 before the learned 4th

Bench, Presidency Small Causes Court at Calcutta. In the said

proceeding, they failed to take possession of the suit property

on the specified date due to resistance caused by the opposite

parties and for which the petitioners were compelled to file

Miscellaneous Case No.157 of 2017 seeking police help to

execute the judgment and decree dated February 28, 2017.

Thereafter, the opposite parties preferred appeal but the said

appeal was also rejected and thereby affirmed the decree dated

February 28, 2017.

During pendency of the said second appeal, the opposite

party no.2 proposed to surrender the petitioners the entire

ground floor and first floor consisting of 7 rooms excluding the

privy, kitchen and verandah to the petitioners. Accordingly,

Hon'ble Court permitted the opposite parties to surrender.

There is no stay and/or restraint on the petitioners from

proceedings either of the Ejectment Execution Case No.58 of

2017 or Miscellaneous Case No.157 of 2017.

The petitioners state that the suit property is in a

dilapidated condition and may cause harm to human life at any

point of time and the petitioners applied before this Court with

a prayer for expeditious disposal of the Misc. Case No.157 of

2017 in CO 896 of 2022 and this Court by an order dated April

27, 2022 was pleased to dispose of that CO 896 of 2022 with a

direction to make expeditious disposal of the case.

After passing of that order by this Court, the petitioners

herein made a prayer before the learned 4th Judge, Presidency

Small Causes Court, Calcutta to expedite the matter in terms of

the order passed by this Court but on being mentioned, the

learned Judge got furious and made some derogatory remarks.

The petitioners state that in view of the provisions

expressed by the learned Judge in the court below the

petitioners reasonably apprehend that they will not got justice

from the learned Judge, 4th Bench, Presidency Small Causes

Court and as such, he submits that it is necessary and expedient

in the interest of justice that the Miscellaneous Case No.157 of

2017 be transferred to the Court of learned Chief Judge,

Presidency Small Causes Court, Calcutta.

Learned counsel appearing on behalf of the petitioners

in this context has relied upon the mandatory directions given

by the Supreme Court in Rahul S. Shah vs. Jinendra Kumar

Gandhi & Ors. reported in (2021) 6 SCC 418.

Learned counsel appearing on behalf of the opposite

parties submits that the allegations are not true and the court

below may be directed to submit a report.

Considered the submissions made by both the parties.

In the normal circumstances, the report would have

been called from the court below about the truthfulness of the

allegations but I find that since it is an execution proceeding

and the object of filing this application by the petitioners is only

for expeditious disposal of the said Misc. Case No.157 of 2017

and the Ejectment Execution Case No.58 of 2017, so, a

direction to that effect is to be given to the court below.

In Rahul S. Shah (supra) Supreme Court has specifically

stated in paragraph 42.12 that the executing court must dispose

of the execution proceeding within six months from the date of

filing which may be extended only by recording reasons in

writing for such delay. This order has been passed to all courts

dealing with suit and execution proceeding and they are to

mandatorily follow the directions (paragraph 42).

In view of the above, CO 2318 of 2022 along with CO

2319 of 2022 is disposed of with a direction upon the court

below to make every endeavour for expeditious disposal of the

case and shall conclude the execution proceeding including

Misc. Case No. 157 of 2017 within a period of three months and

if possible by conducting day-to-day hearing in compliance

with the direction made by the Apex Court in Rahul S. Shah

(supra).

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of all necessary

formalities.

(Ajoy Kumar Mukherjee, J.)