Calcutta High Court (Appellete Side)
C & Cr vs Sri Gour Charan Mullick & Anr on 10 January, 2023
10.01.2023
Item No.22
Ct. No.7
CHC
C.O. 98 of 2023
Nirmal Kumar Tiwari
C & CR
Vs.
Sri Gour Charan Mullick & anr.
Mr. Sounak Bhattacharya,
Mr. Gautam Das,
Mr. Sandeep Kr. Tiwari
...for the petitioner
Mr. Souradipta Banerjee,
Ms. Fatima Hassan
...for the opposite parties
Mr. Bhattacharya, learned advocate appearing for
the petitioner, while assailing orders dated 6 th
December, 2022 and 19th December, 2022, passed in
Misc. Case No.212 of 2017, arising out of Ejectment
Execution Case No.101 of 2017, pending before
learned Judge, 6th Bench, Presidency Small Causes
Court, at Calcutta, submits that the court below while
granting police assistance for the execution of the
decree, followed by a direction upon the bailiff to
hand over possession of the decretal property to the
decree-holders, the pendency of the restoration
application filed by the petitioner/judgement-debtor
in connection with Second Appeal could not be taken
care of.
Mr. Bhattacharya submits that objection of the
judgment-debtor could not be appropriately gone into
by the court below, though the opposite party has
adduced evidence without filing written objection for
the purpose.
It is thus simply contended by Mr. Bhattacharya
that whenever restoration application has already
been filed for appropriate order in connection with
Second Appeal, which admittedly got dismissed on
23rd June, 2022, execution of the decree taking order
of the court below will make the Second Appeal
infructuous.
Per contra, Mr. Souradipta Banerjee, learned
advocate appearing for the opposite parties/decree-
holders submits that petitioner filing the instant
revisional application was not the party to the
application praying for police assistance.
It is thus submitted by the learned advocate for the
opposite parties that the instant revisional application
is not maintainable.
Incidentally, it is submitted by the learned
advocate for the opposite parties that petitioner by
proved conduct showed his reluctance in paying
occupational charges granted at the rate of
Rs.8,000/- per month by the first lower appellate
court.
It is strongly, however, contended by the opposite
parties that a decree already granted by the court
below is going to be frustrated, for the exhibition of
some technicalities with use of some extraneous
influence, which is not at all encouraging one.
The trial court granted decree of eviction in 2017.
The first lower appellate court, however, affirmed the
same. Second Appeal has been preferred, which
ultimately got dismissed on 23 rd June, 2012. A
restoration application has already been filed.
Mr. Banerjee, submits that decree even could not
be executed yesterday, because of the strong
resistance put up by the judgment-debtor in spite of
the presence of the police authority.
Learned advocate appearing for the opposite
parties acknowledges service of copy of restoration
application so far as the Second Appeal is concerned.
The propriety of the order impugned may be best
addressed after the decision of the restoration
application, if any decided in the meantime.
In the meantime, let there be an order directing
petitioner/judgment-debtor to secure Rs. 50,000/-
(Rupees Fifty Thousand only) before the court below
within seven (07) days from the date of
communication of this order to the court below, and
subject to the deposition of such amount, the decree
may not be executed till the end of February, 2023, in
default, the decree may be executed without making
any further reference to the other sides.
Parties are directed to communicate this order to
the court below.
Urgent certified photostat copy of this order, if
applied for, be given to the parties as expeditiously as
possible on compliance of all necessary formalities.
(Subhasis Dasgupta, J.)
