PARUL MUKHERJEE Vs. GOURI BISWAS

JUDGEMENT

(1.) The plaintiff/petitioner filed Title Suit No. 362 of 1993 for eviction of the tenant/opposite parties under the provision of the West Bengal Premises Tenancy Act, 1956 (hereinafter called as the said Act) inter alia on the ground of reasonable requirement of the suit premises. The said suit was decreed on contest on 25th September, 2000. The plaintiff / petitioner put the said decree into execution under Title Execution Case No. 34 of 2000 in the First Court of Civil Judge (Jr. Division) at Alipore. The tenant/opposite parties preferred an appeal being Title Appeal No. 339 of 2000 against the aforesaid judgment and decree of eviction on 24th November. 2000. On a stay petition filed by the tenant/opposite parties in the said Title Appeal the lower appellate Court by an order dated 27.11.2000 granted an interim stay of execution of the said decree till 30th January, 2001.

(2.) There is no dispute whatsoever that the writ for delivery of possession was issued by the executing Court in the aforesaid Execution Case No. 34 of 2000 and in execution of the said decree possession of the suit premises was delivered to the plaintiff/petitioner on 11.12.2000. It is also not in dispute that the interim order staying execution of the said decree of eviction as passed by the Court of appeal below in which the appeal against the said judgment and decree of eviction is pending was not communicated to the Executing Court. It was however, alleged that the learned Advocate for the appellants in the morning of 11.12.2000 received an information that the bailiff of the learned Court being armed with the writ for delivery of possession had come to the suit premises for delivering possession of the same to the plaintiff/petitioner. The said learned Advocate upon receipt of such information rushed to the locale and requested the bailiff not to execute the writ for delivery of possession as a stay order had been granted by the appellate Court on 27th November, 2000 and showed the bailiff the relevant papers and a plain copy of the said interim order of stay as passed in Title Appeal No. 339 of 2000. It was further alleged that the said bailiff also refused to accept any letter from the said learned Advocate stating the facts of interim stay as granted by the learned Court of appeal below as above. However, it was the specific case of the tenant/opposite parties that the suit premises was under lock and key and the bailiff delivered possession of the suit premises to the decree holder/plaintiff/petitioner by breaking open the padlock.

(3.) In these state of affairs, the tenant/opposite parties filed an application under section 151 of the Code of Civil Procedure in the aforesaid Title Appeal No. 339 of 2000 for restoration of the possession of the suit premises. The said application was contested by the plaintiff/decree holder/petitioner and upon contested hearing the learned Court of appeal below allowed the said petition of the tenant/opposite parties by directing the decree holder/petitioner to restore back the vacant possession of the suit premises to the tenant/opposite parties. The said order for restitution dated 25th April, 2001 was challenged in this revisional applications.