Amar Nath Basu Mallick And Others vs Paresh Singh
2023 Latest Caselaw 3699 Cal

June 7, 2023 Sl. No.10 Court No.19 s.biswas CO 1651 of 2023

Amar Nath Basu Mallick and others vs.

Paresh Singh

Mr. Sibasis Ghosh ... for the petitioners

The petitioners have made an innocuous prayer.

The petitioners are the decree holders in Title Suit

No.137 of 1998. The Hon'ble High Court granted

stay of the execution on the ground that Rs.5000/-

be deposited as occupational charges as a pre-

condition for the grant of stay. A default clause was

added that in case the judgment debtor failed to

deposit the occupational charges, the execution

would proceed.

It is submitted by Mr. Ghosh, learned advocate

for the petitioners, that the judgment debtor failed to

deposit the occupational charges from September,

2011 and was enjoying the property without paying a

single farthing. The decree holders now want to

proceed with the execution case and take over the

vacant possession of the suit property.

Mr. Ghosh further submits that by an

application dated June 10, 2022, it was brought to

the notice of the learned executing court i.e. the

court of learned 7th Civil Judge (Junior Division),

Howrah that execution case being Title Execution

Case No. 2 of 2010 should be proceeded with, as no

occupational charges had been paid after August

2011. The petitioners contend that the said

application has been kept pending since June 10,

2022 and the petitioners/decree holders are being

deprived of being able to ultimately enjoy the fruits of

the decree.

Having gone through the order of this court

passed in SAT 383 of 2009, it appears to the court

that the Coordinate Bench had directed that in case

of default of payment of any one of the deposit of

occupation charges payable from July, 2011, the

interim order of stay shall stand vacated.

Under such circumstances, this court is of the

view that the learned executing court should dispose

of the said application pending before the learned

court within a period of two months from the date of

communication of this order, on its own merits and

upon contest. This is an innocuous order of

expeditious disposal of an application in the

execution case. No prejudice will be caused to the

opposite parties if the application is disposed of upon

granting an opportunity to the opposite parties to

contest the same.

It is made clear that the file shall be traced

immediately and if the same cannot be traced, the

file should be reconstructed, so that the order of this

court is mandatorily complied with. The execution

case is pending since 2010 and is dragging.

However, this court has not expressed any

opinion with regard to merits of the execution case

and the learned court below shall dispose of the

same strictly in accordance with law.

The revisional application is thus disposed of.

A copy of this revisional application along with

sever copy of this order be served upon the opposite

party within a period of a week from date.

All the parties and the learned court below shall

act on the basis of server copy of this order.

(Shampa Sarkar, J.)