Mir Dara Sheko, J. - (1.) Heard Mr. Tarak Nath Halder, learned Advocate, who only is found present to represent the opposite party Nos. 2, 3 and 4 in C.O. 1687 of 2012 filed by Sri Samir Kumar Paul, assailing order dated February 15, 2012 passed by the learned Civil Judge, Senior Division, 9th Court at Alipore in Title Execution Case No. 1 of 1991 arose out of Title Suit No. 90 of 1977 (Adhir Kumar Paul Vs. Smt. Gayatri Paul & Ors.), allowing the execution case keeping the application under Section 47 of the Code of Civil Procedure filed by the same opposite party Nos. 2, 3 and 4 in abeyance.
(2.) It is pertinent to mention that though the aforesaid opposite party Nos. 2 to 4 of C.O. 1687 of 2012 independently filed another application, being C.O. 2143 of 2012 assailing self-same common order since their aforesaid application under Section 47 was kept in abeyance by allowing the applications filed by the decree holder / opposite party No. 1, Adhir Kumar Paul / plaintiff of the partition suit both the revisional applications are taken up for disposal upon hearing Mr. Halder since both the application, being C.O. 1687 of 2012 and C.O. 2143 of 2012 have been filed assailing common order. None represented the other sides in both the revisional applications.
(3.) Background of the case is that the suit being Title Suit No. 90 of 1977 was filed by Adhir Kumar Paul, opposite party No. 1 of both the revisional application for partition and accounts which ended into preliminary decree. Since, it could not be decreed finally amicably between the parties, ultimately final decree was drawn up by the learned Trial Court with the aid of report of the learned Commissioner appointed by the Court. Dispute cropped up while the said final decree was put into execution with some added prayers submitted by the opposite party No. 1, Adhir Kumar Paul i.e., plaintiff of the original suit, who had sought permission of the Court to construct a spiral staircase to have access to his allotted portion and also sought for necessary order so that the defendant No. 2 and his son would vacate the second floor flat, which was allegedly lying in unlawful possession. Accordingly, upon hearing, learned Executing Court passed the impugned order, the operative part of which is quoted below :- "That the Dhr. is hereby permitted to construct a spiral staircase preferably from outside of the demised premises, entirely at his own expenses to have their easy and smooth access to their allotted portion of the suit premises without encumbering or disturbing the common passage enjoyed by both the parties. Any tenant or any person and also the defendant no. 2 and his son are directed to vacate the 2nd floor flat within three months from this order failing which Dhr. is at liberty to proceed under the law. However no direction can be given to the local police at this stage. Accordingly both the petitions are allowed on contest and thus disposed of.";