Sri Kanakendra Mohan Chowdhury & ... vs Sri Gourav Bhattacharya & Ors
2023 Latest Caselaw 1893 Cal

S/L 23
22.03.2023

Suvayan CO 1189 of 2019 With CAN 2 of 2019 (Old No. CAN 9339 of 2019) With CAN 3 of 2022

Sri Kanakendra Mohan Chowdhury & Anr.

Vs.

Sri Gourav Bhattacharya & Ors.

Mr. Ayan Banerjee Mr. Krishnendu Bhattacharya Mr. Arijit Bhowmick Ms. Debasree Dhamali Mr. Priyankar Ganguly ...for the petitioners.

Mr. Pratyush Patwari ...for the added opposite party.

Learned Advocate for the revisionists and learned

Advocate for the intending added parties are present.

None appears on behalf of the opposite party Nos.

1 and 2.

At this stage, CAN 3 of 2022, is now taken up for

hearing.

By filing CAN 3 of 2022, one Mr. Dinesh Kumar

Goyal has prayed for adding him as opposite party in the

instant revisional application since during the pendency

of the instant revisional application, the said Mr. Dinesh

Kumar Goyal has purchased the suit property from the

opposite party Nos. 1 and 2 by a registered deed of

assignment dated October 15, 2020. It is contended on

behalf of the proposed added party, Mr. Dinesh Kumar

Goyal that since this proposed opposite party has stepped

into the shoes of the opposite party Nos. 1 and 2 of the

instant revisional application, he may be added as one of

the opposite parties in the instant revisional application.

Learned Advocate for the revisionists, however, opposes

such prayer.

On perusal of the entire materials as placed before

this Court it reveals that sufficient prima facie materials

have been placed to substantiate that the proposed

opposite party, Mr. Dinesh Kumar Goyal has purchased

the suit property from the opposite party Nos. 1 and 2 of

the instant revisional application and accordingly in

considered view of this Court he has become a necessary

party in the instant revisional application.

Accordingly, CAN 3 of 2022 is hereby allowed.

Department is hereby directed to incorporate the

name, address and other particulars of Mr. Dinesh Kumar

Goyal in the cause title of the petition under Article 227 of

the Constitution of India as opposite party No. 4.

At this stage, as per request of the learned

Advocate for the petitioners and the opposite party No. 4

CAN 2 of 2019 (Old No. CAN 9339 of 2019) is taken up

for hearing.

By filing CAN 2 of 2019 (Old No. CAN 9339 of

2019) the opposite party Nos. 1 and 2, namely, Gourav

Bhattacharya and Anubhab Bhattacharya have prayed for

modification of the interim order dated 04.04.2019 as

passed in this case which was extended time to time by

imposing monthly occupation charge upon the opposite

parties of the said application payable to the applicants.

Learned Advocate for the newly added opposite

party No. 4 submits before this Court that the said

application CAN 2 of 2019 (Old No. CAN 9339 of 2019)

may be allowed.

Learned Advocate for the petitioners, however,

opposes such prayer contending that such petition for

fixing occupational charge has not been filed on behalf of

the newly added opposite party No. 4 but the same has

been filed on behalf of the opposite party Nos. 1 to 2.

Since the opposite party Nos. 1 to 2 are absent today, this

Court considers that probably the opposite party Nos. 1 to

2 have lost their interest in moving the said application

and accordingly CAN 2 of 2019 (Old No. CAN 9339 of

2019) is hereby dismissed for default.

At this stage, the petition under Article 227 of the

Constitution of India as filed by the revisionists is taken

up for hearing.

On perusal of the impugned order dated March 20,

2019 as passed by the learned Civil Judge (Senior

Division), 2nd Court, Barasat, North 24 Parganas it

reveals that in a proceeding under Order 9 Rule 13 of the

Code of Civil Procedure, the present revisionists being the

judgment debtor of Title Suit No. 1227 of 2015 has prayed

for stay of Title Execution Case No. 15 of 2018 which has

been refused by the said Court. After due consideration

over the materials as placed before this Court and after

hearing the learned Advocate for the

petitioners/revisionists and the learned Advocate for the

newly added opposite party No. 4 it appears to this Court

that in the event the stay as prayed for before the learned

Trial Court in Misc. Case No. 24 of 2019 as filed under

Order 9 Rule 13 of the Code of Civil Procedure has not

been granted, the very purpose of filing the said Misc.

Case No. 24 of 2019 would become infructuous.

In view of such, this Court allows the instant

revisional application. Consequently, the impugned order

dated March 20, 2019 as passed by the learned Civil

Judge (Senior Division), 2nd Court, Barasat, North 24

Parganas in Misc. Case No. 24 of 2019 is hereby set aside.

It is further ordered that there shall be stay of all

further proceeding of Title Execution Case No. 15 of 2018

till disposal of Misc. Case No. 24 of 2019 by the said Trial

Court. It is, however, directed that liberty is given to the

present newly added opposite party No. 4 to file

application for addition of party in Misc. Case No. 24 of

2019 and in the event such application has been filed,

such application has got to be disposed of within a

fortnight from the date of filing of the said application

after giving an opportunity to the present revisionists that

is; the opposite parties of the said Misc. case to file their

written objection and/or affidavit-in-opposition, if there

be any.

It is further directed that thereafter the learned

Trial Court shall proceed with Misc. Case No. 24 of 2019

in de-die-in-diem manner without granting any

adjournments to either side for whatsoever reason. It is

further directed that Misc. Case No. 24 of 2019 shall have

to be disposed of by the learned Trial Court within three

months from the date of communication of this order. It

is also made clear that the time limits of three months as

fixed by this Court is mandatorily to be observed by the

learned Trial Court.

Liberty is also given to the present newly added

opposite party No. 4 to pray for occupational charges

before the learned Trial Court in Misc. Case No. 24 of

2019 if he is at all made party in the said Misc. case by the

learned Trial Court and in the event such application is

filed, learned Trial Court is at liberty to pass any order in

accordance with law without being influenced with any of

the observations as made hereinabove.

With the aforementioned observation the instant

revisional application being CO 1189 of 2019 along with

all interim applications are hereby disposed of.

Learned Advocate for revisionists is hereby

requested to supply a copy of the instant revisional

application to the learned Advocate for the newly added

opposite party No. 4 preferably in course of this day for

his record.

It is, however, made clear that the observation as

made hereinabove is purely limited for the disposal of the

instant revisional application and the learned Trial Court

shall not persuade himself with any of the observations as

made hereinabove while disposing of Misc. Case No. 24 of

2019 on its merit.

Parties to act on the server copies of this order.

Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Partha Sarathi Sen, J.)