Chaitali Das & Anr vs Sri Fatik Chand Sardar & Ors
2023 Latest Caselaw 3638 Cal

M/L 6
05.6.2023

Court No.652 SD CO 2994 of 2018

Chaitali Das & Anr.

Vs.

Sri Fatik Chand Sardar & Ors.

Mr. Shiv Shankar Banerjee Ms. Sanchita Barman Roy ... for the Petitioners.

Mr. Chitta Ranjan Chakraborty Mr. Dip Jyoti Chakraborty Mr. Sumit Banerjee ... for the Opposite Party No.1.

Affidavit of service filed by the petitioners in court

today be kept with the record.

This is an application under Article 227 of the

Constitution of India against the Order dated August 2, 2018

passed in Misc. Case No.118 of 2014, arising out of Title

Execution Case No.5 of 2011, by the learned Civil Judge

(Junior Division), 2nd Court, South 24 Parganas at Baruipur.

Petitioners contended that the petitioners herein as

plaintiffs filed a suit for recovery of khas possession in

respect of the suit property in the year 2010 being Title Suit

No.129 of 2010. The said suit was decreed ex parte on

January 3, 2011. Thereafter, the predecessor of the

petitioners filed an execution application being aforesaid

Title Execution Case No.5 of 2011.

In the said execution case, the present opposite party

no.1, namely, Fatik Chand Sardar filed aforesaid Misc. Case

No.118 of 2014 under Order XXI Rule 99, 100, 101 and 103

of the Code of Civil Procedure. In the said Misc. case, the

said opposite party no.1 had taken a plea of acquisition of

title in the properly in question by way of adverse

possession. The petitioners herein filed written objection

against the said plea. The said opposite party no.1 also filed

an application for stay of the aforesaid execution proceeding

in the said Misc. Case. The learned court below by the order

impugned was pleased to grant the opposite party no.1's

prayer for stay of the execution proceeding being aforesaid

Title Execution Case NO.5 of 2011 till disposal of the

aforesaid case being Misc. Case No.118 of 2014 with a cost of

Rs.1,000/-.

Learned counsel appearing on behalf of the

petitioners submits that the court below while granting stay

did not consider that the opposite party no.6 herein was the

original defendant/tenant and she is the wife of present

opposite party no.1, who is the petitioner of the said Misc.

Case. He has taken a specific plea that ex parte decree in the

said suit is binding upon all the family members of the

original defendant and he cannot acquire any title in the said

property by way of adverse possession. Court also has not

considered that the opposite party no.1 in fact has prayed for

adverse possession against the judgment debtor/wife. In

fact, the court below has passed the order of stay

mechanically without considering the age of the execution

proceeding. He further contended that no unconditional stay

should have been granted by the court below in favour of the

opposite party.

Learned counsel appearing on behalf of the opposite

party no.1 raised objection and contended that the court

below was justified in granting the order of stay as the

petitioner/opposite party no.1 herein has taken a specific

plea of acquisition of title by way of adverse possession. He

further submits that unless and until that question raised by

the opposite party no.1 is disposed of, the execution

proceeding must not proceed.

He further contended that the suit has been decreed

within three months of filing of the suit and the defendant in

that suit did not get opportunity to file written statement.

In this context, learned counsel for the petitioners

submits that the opposite party no.1 being the family

member of original defendant/Judgment debtor was all

along aware of the said proceeding and now, he has come

with this frivolous application only to drag the execution

proceeding and to deprive the decree-holder from getting the

fruits of the decree, which was passed twelve years back.

Having considered the facts and circumstances of the

case, it appears that the suit was filed in the year 2010 and

the execution proceeding was started in the year 2011. Even

the Misc. case under Order XXI Rule 99, 100, 101 and 103 of

the Code of Civil Procedure was filed in the year 2014. Since

then it is pending for disposal.

In the view of the above, the revisional application

being CO 2994 of 2018 is disposed of with a direction upon

learned Civil Judge (Junior Division), 2nd Court, South 24

Parganas at Baruipur to dispose of the pending application

under Order XXI Rule 99, 100, 101 and 103 of the Code of

Civil Procedure being Misc. Case No.118 of 2014 within a

period of eight weeks from the date of communication of the

order.

The opposite party no.1/petitioner of the said Misc.

case shall deposit Rs.5,000/- per month towards

occupational charge from June 1, 2023 till disposal of the

aforesaid Misc. Case NO.118 of 2014, before the court below

and petitioners will be at liberty to withdraw the said

amount from the court below subject to the result of said

Misc. Case No.118/2014. On that condition, the execution

case being Title Execution Case No.5 of 2011 shall be stayed,

till disposal of aforesaid Misc. case.

However, it is made clear that if the

petitioner/opposite party no.1 herein fails to pay the

occupational charges for any month, within seventh day of

succeeding month, the stay granted in connection with

execution proceeding shall automatically stand vacated,

without any further reference made to this court and in that

case, the executing court will proceed with the execution

case.

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.)