DEBASHISH SINHA Vs. RABINDRA NATH SINHA

JUDGEMENT

(1.) This application is directed against the order dated July 9, 2010 passed by the learned Additional District Judge, Seventh Court at Alipore in Misc. Appeal No.179 of 2010 affirming the order dated March 26, 2010 passed by the learned Civil Judge (Junior Division), Sixth Court, Alipore in Misc. Case No.326 of 2010 arising out of the Title Execution Case No.70 of 2009.

(2.) The short fact is that the opposite party no.2 instituted the Title Suit No.93 of 2004 before the learned Civil Judge (Junior Division), Sixth Court, Alipore for eviction of the defendant no.1 along with other reliefs. In that suit, the opposite party no.1 contested the suit. Upon hearing both the sides, the suit was decreed. After completion of the other steps with regard to that suit, the plaintiff put the said decree by filing the Title Execution Case No.70 of 2009. In that execution application, the petitioner herein filed an application under Order 21 Rule 99 of the Code of Civil Procedure on March 26, 2010 and that application has been converted into a misc. case bearing No.326 of 2010. In that misc. case, he also filed an application for stay of further proceedings of the Title Execution Case No.70 of 2009 on the same day. It was expected that the learned Executing Court should dispose of the said misc. case and the application filed by the petitioner. But, in fact, by the order impugned, the learned Executing Court did not consider the misc. case and the application for stay filed by the petitioner. But he disposed of the application for stay filed by the judgment debtor on February 6, 2010 upon certain conditions. But the order impugned passed by the learned Executing Court does not bear any whisper relating to the misc. case and the petition for stay. The learned Executing Court has also passed orders that the order of stay is vacated meaning thereby the execution case shall proceed. Being aggrieved by the said order, the petitioner preferred the misc. appeal bearing no.179 of 2010 and that misc. appeal was disposed of by the learned Additional District Judge, Seventh Court, Alipore by the order dated July 9, 2010 holding that no misc. appeal lies against the order impugned. Under the circumstances, the petitioner has come up with this application.

(3.) Upon hearing the learned Advocate for the parties and on perusal of the materials on record, I find that the petitioner filed an application under Order 21 Rule 99 of the C.P.C. in the execution application filed by the opposite party and that application has been numbered as Misc. Case No.326 of 2010. In that misc. case, the petitioner also filed an application for stay of further proceedings of the execution case. But, it is curious to note that the impugned order passed by the learned Trial Judge does not indicate at all relating to this application but he has simply considered the application for stay filed by the judgment debtor on February 6, 2010 and that application was allowed subject to making a security of Rs.10,000/- within a period of two weeks. Thus, the learned Trial Judge has found no justification for stay of the execution case. This is, I find, apparent mistake committed on the part of the learned Trial Judge. He has failed to exercise the jurisdiction vested in him. He should have considered the misc. case filed by the petitioner and the stay petition filed in the misc. case first and then he should have proceeded with the execution case. Thus, I find that the learned Trial Judge has committed errors of law in passing the impugned order. The lower Court also failed to take notice of such fact.