Kusum Steels Ltd vs M/S. Bajrangbali Engineering ...
2023 Latest Caselaw 4050 Cal

Item No. 1
03.07.2023

GB C.O. 372 of 2022 With CAN 3 of 2023

Kusum Steels Ltd.

Vs.

M/s. Bajrangbali Engineering Company Ltd.

Ms. Sutapa Sanyal, Mr. Deepak Kumar Singh, Mr. Debrup Bhattacharjee, Mr. Ayush Jain ... for the Petitioner.

Mr. Partha Pratim Roy, Mr. Gautam Das, Mr. Sandeep Kr. Tiwari ... for the Opposite Party.

CAN 3 of 2023 is an application for extension of the

interim order, which was originally passed by a coordinate

Bench on September 19, 2022.

It appears that an eviction decree was granted in

favour of the opposite party sometime in 2011. The judgment

and decree was challenged in Title Appeal No.227 of 2011 by

the petitioner. The appeal was dismissed for default in 2021.

A restoration application was filed. As the restoration

application was belated, an application under Section 5 of the

Limitation Act, for condonation of delay was also filed. The

application was registered as Misc. Case No.17 of 2021.

During pendency of the title appeal, the decree-holder

put the decree into execution.

The petitioner filed an application for stay of the

execution proceedings. The learned executing court rejected

the said application.

Aggrieved, by the aforementioned order, the

petitioner has moved this revisional application.

Considering the fact that, there was an eviction decree

against the petitioner and the petitioner is still enjoying the

property, the coordinate Bench deemed it fit to stay the

Execution Case No.2 of 2021 which is pending before the

learned Civil Judge (Senior Division), 2nd Court at Howrah

for a period of four weeks subject to payment of cost of Rs.7

lakhs to be deposited by the petitioner before the learned

court below, within seven days from the order dated

September 19, 2022. The petitioner deposited the amount in

the learned court below. The interim order was further

extended with a direction to deposit a sum of Rs.3 lakhs on

March 2, 2023.

Again, another application has been filed for extension

of the interim order of injunction.

The application for restoration filed in connection

with the title appeal was barred by limitation. An application

for condonation of delay with the explanation was filed. Both

the applications are pending.

Hence, instead of relegating the matter back to the

lower appellate court for a decision on the application under

Section 5 of the Limitation Act and for further hearing of the

application for restoration of the appeal, if delay is condoned,

this Court decides to dispose of the said applications.

The appeal was dismissed during the pandemic. The

Hon'ble Apex Court had extended the period of limitation in

all suits and proceedings. For such reasons, the delay caused

by the petitioner in filing the restoration application under

Order 41, Rule 19 of the Code of Civil Procedure, deserves to

be condoned. The application under Section 5 of the

Limitation Act filed in connection with Misc. Case No.17 of

2021 is allowed and the restoration application is registered.

This Court deems it fit to restore the appeal by setting

aside the order of dismissal of the appeal for default, as the

pandemic intervened and proper steps could not be taken by

the petitioners. Hence Misc. Case No.17 of 2021 is also

allowed and disposed of. The Title Appeal No.227 of 2011 is

restored to its original file and number.

This Court finds that the petitioner although suffered

a decree of injunction, has been enjoying the property since

2011. The appeal filed in 2011 was dismissed for default, ten

years from filing of the same. Thus, this Court is of the view

that the landlord deserves further security during the

pendency of the appeal if the execution is required to be

stayed.

As the landlord has been suffering since long and he is

not being able to enjoy the property, this Court deems it fit to

direct the learned Additional District Judge, 5th Court at

Howrah, to dispose of the Title Appeal No.227 of 2011 within

a period of three months from the next date fixed

mandatorily, without granting unnecessary adjournments to

either of the parties. The Execution Case No.2 of 2021 shall

remain stayed for a period of four months or till the disposal

of the appeal, whichever is earlier, subject to the petitioner

depositing a further sum of Rs.10 lakhs before the learned

executing court. The money shall be deposited by the

petitioner within July 21, 2023. In case of default, the

learned executing court shall proceed with the execution.

The prayer of Mr. Roy to allow withdrawal of the

money is not considered by this Court. Mr. Roy's client is at

liberty to apply before the learned executing court for such

withdrawal and if such application is filed, the same shall be

decided upon contested hearing and upon giving the

petitioner an opportunity to file a written objection.

This Court has not expressed any opinion on the

merits of the title appeal. The title appeal shall mandatorily

be disposed of within the aforementioned period.

Accordingly, the revisional application along with the

connected application are disposed of.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis.

(Shampa Sarkar, J.)