ANNAPURNA ACHARJEE Vs. PRAVASH ROY

JUDGEMENT

(1.) This petition is at the instance of a decree- holder and is directed against Order no-19 dtd. 30/08/2019 passed by Learned Civil Judge Junior Division 1st Court Durgapur in Title Execution Case No - 5/2014 arising out of Title Suit No.225 of 2012. The petitioner being aggrieved by the said Order has come up with this application under Article 227 of the Constitution of India. The case of the petitioner may be summed up thus.

(2.) The petitioner instituted a suit for eviction against the opposite party being Title Suit No. 225 of 2012 in the Court of Learned Civil Judge Junior Division First Court Durgapur Burdwan praying for recovery of vacant possession of the suit premises. The said suit was taken up for final hearing ex parte by the Learned Trial Judge. By judgment and Order dated April 25 2019, and decree dated June 30, 2019, the suit was allowed ex-parte without cost and the opposite party was directed to quit and vacate the suit premises and hand over the Khas possession in favour of the petitioner within sixty days from the date of passing the order and the petitioner was given liberty to put the decree into execution in the event the opposite party failed to comply the direction of the Court. The opposite party failed to comply the direction of the Learned Court below and in the circumstances the petitioner filed Title Execution Case No-5 of 2019, in Court of the Learned Civil Judge (Junior Division) praying for execution of the decree of the Title Suit No-225 of 2012 dated April 25, 2019 and also praying for Khas possession of the suit premises by breaking padlock through Court process server and on May 16, 2015, the petitioner also filed an application under Sec. 151 of the Code of Civil Procedure praying for Khas possession by breaking lock of the suit premises. The said application under Sec. 151 of the Code of Civil Procedure was taken up for hearing by the Learned Court below and on June 24, 2015, the Learned Court below kept the petition in abeyance till the execution of the writ of delivery of possession and by and under Order No - 14, dated September 11, 2019, learned Court below was pleased to allow the said petition under Sec. 151 of the Code of Civil Procedure dated May 16, 2015 issued the writ for delivery of possession of the decreetal property in terms of the decree through Nazir/bailiff of the Court and directed the Nazir/bailiff to execute the writ and to break open padlock, if any, at the time of execution, and thereafter on December 28, 2015 the execution case was disposed of. As per the order of Learned Court possession of suit premises was handed over to the petitioner/decree holder by breaking open the padlock through process server. As there were few articles of the opposite party in the suit room the same were kept under the custody of the petitioner by the process server after making a list of the said articles. On 30/8/2019, an application under Sec. 151 of the Code of Civil procedure, was filed by the petitioner/decree holder for taking the articles under the custody of the Court. The application filed by the petitioner was rejected by the Learned Court below. The petitioner being aggrieved by the said order has come up with the present application.

(3.) It is the contention of the petitioner that the Learned Court below wrongfully held that the articles were not the subject matter of the original suit and the execution case, and no order could be passed regarding any articles which was not subject matter of any suit/proceeding of the Court. It is further contended, that at the time of institution of the suit as well as execution case it was not known to the petitioner about the articles of the opposite party and the same was under lock and key in the room and the petitioner came to know about the said article only on November 19, 2015 and the list of articles was in the record of the Court.