SUNIRMAL DAS Vs. KAMALA KANTA ROY
HIGH COURT OF CALCUTTA
KAMALA KANTA ROY
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B.Panigrahi, J. -
(1.)This revisional application is directed against an Order/Judgment passed by the Executing Court, Assistant District Judge, 8th court, Alipore in Execution Case No.14/85 whereby and whereunder the court condoned the delay and issued notice against the Judgment-debtors.
(2.)The case has suffered a chequered history. The opposite party, original Decree holder filed a suit in T.S. No.1171/62 in the Original Side of this court for specific performance of contract against one Salil Kr. Das, the predecessor-in-interest of the opposite parties 2 to 4 and the predecessor-in-interest of the opposite parties 8 to 10, Malay Kr. Das and Chanchal Kr. Das; which was decreed on contest on 8th January, 1964.The decree-holder opposite party No.1 filed another suit in T.S. No.1171/62 for recovery of possession in the 8th court, Sub-ordinate Judge, Alipore and was decreed on 3rd October, 1969. After the decree the opposite party No.1 levied execution case No. 6/76 against the Judgment-debtors in the 8th court of the Sub-ordinate Judge, Alipore and allegedly had taken delivery of possession with police help on 28th May,1977. Subsequently, the opposite party No.1 said to have filed another suit in T.S. 583/77 against some of the defendants of the earlier suit, Chanchal Das, Malay Kr. Das and Smt. Anjali Das under section 6 of the Specific Relief Act for recovery of two room of the ground floor of the suit premises, on the allegations that the said 3 persons had dispossessed the opposite party No.1 from the suit premises namely, the two rooms on 29th May, 1977. It appears that the learned Munsif had dismissed the suit by holding that there was no delivery of possession granted to the opposite party No.1. Thus, the opposite party No.1 filed fresh execution case in title execution case No.14/85 before the same executing court, namely, i.e. 8th court of the Sub-ordinate Judge, Alipore along with an application under sections 14 and 15 of the Indian Limitation Act. The learned executing court was however, satisfied about the grounds for filling execution case at such belated stage and condoned the delay. That is how, the petitioner being aggrieved by and dissatisfied with the order or judgment of the executing court filed this instant revision.
(3.)Mr. Bhaskar Bhattacharjee, the learned Advocate appearing for the petitioner, has strenuously urged that in this case the executing court appears to have committed serious illegality in condoning the delay and accepting the execution case, particularly, after the first execution case having been fully satisfied. The learned executing court was oblivious to the situation that the previous suit filed under section 6 of the Specific Relief Act was only against 3 of the Judgment-debtors and the same in relation to two rooms which was the subject matter of the suit. Once the decree-holder, namely, the opposite party No.1 had filed an application before the executing court mentioning that the decree was fully satisfied and after the court having recorded that the decree had been fully satisfied, there was no occasion again for the decree-holder to lodge a second application claiming for delivery of possession. In such situation, the learned executing court should not have condoned the delay owing to stay or injunction being passed by various courts in earlier proceedings.
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