Calcutta High Court (Appellete Side)
Lakshmi Rani Hazra vs Manoj Kumar Agarala And Another on 12 June, 2023
June 12, 2023
Sl. No.22
Court No.19
s.biswas
CO 1268 of 2023
Lakshmi Rani Hazra
vs.
Manoj Kumar Agarala and another
Mr. Uttiya Ray
Mr. Arnab Mandal
... for the petitioner
Mr. Tirthankar Dhali Chattaraj
... for the opposite parties
The order dated March 24, 2023 passed in Title
Execution Case No.14 of 2018 by the learned Civil
Judge (Junior Division), 2nd Court, Burdwan is
under challenge before this court.
According to the learned advocate for the
petitioner/judgment debtor, during the pendency of
the application under Order 9 Rule 13 of the Code of
Civil Procedure read with Section 5 of the Limitation
Act, the learned court below refused to stay the
execution proceedings and directed that the Title
Execution Case no.14 of 2018 would proceed in
accordance with law.
Learned advocate for the opposite parties denied
the contention of the learned advocate for the
petitioner/judgment debtor and submits that the
Title Suit No.88 of 2014 was decreed ex parte on
April 12, 2018. Although the application under
Order 9 Rule 13 of the Code of Civil Procedure read
with Section 5 of the Limitation Act had been filed,
no steps had been taken by the judgment
debtor/petitioner to proceed with the same.
It is further submitted that even the summons
have not yet been received by the opposite parties.
Hence, the learned court below had rightly rejected
the application for stay which was filed after 2 years
from passing of the decree.
Mr. Ray, learned advocate for the petitioner,
denied the factual allegation made by the learned
advocate for the opposite parties.
Perused the records. It is an admitted position
that the application for setting aside the ex parte
decree and an application of condonation of delay,
are pending before the learned court below since
long. Learned court below, in all fairness, ought to
have stayed the execution proceedings for a limited
period and the application for condonation of delay
as also the application for setting aside the ex parte
decree, if the delay was condoned, ought to have
been disposed of first. The order impugned dated
March 24, 2023, is set aside.
This Court is of the view that unless stay is
granted, the pending applications filed by the
defendant will become infructuous.
It is further submitted that possession has been
taken in execution.
This court restrains the decree
holders/plaintiffs from changing the nature and
character of the suit property and/or from alienating
or transferring or assigning the property to a third
party. No third party rights shall be created. Such
interim order shall be operative for a period of four
months. Within such time, the application under
Section 5 of the Limitation Act shall be heard and if
the same is allowed, the proceedings for setting aside
the ex parte decree shall be disposed of by the
learned court below.
A copy of the application under Section 5 of the
Limitation Act and the application under Order 9
Rule 13 of the Code of Civil Procedure shall be
served upon the learned advocate for the opposite
parties within the course of this week. Such service
shall be taken as a good service and no further
service of summons shall be required to be served
through the learned trial court.
This order is passed only to expedite the
proceedings before the learned court below. The
opposite parties shall be at liberty to file their written
objection to both the applications within two weeks
from the receipt of the copies.
The revisional application is disposed of. This
court has not entered into the merits of the pending
applications.
All the parties are directed to act on the basis of
the server copy of the order.
(Shampa Sarkar, J.)
