MADHUSUDAN BANERJEE Vs. AHMED HUSSAIN

JUDGEMENT

(1.) THIS revisional application under Article 227 of the Constitution of India at the instance of the petitioner/judgment debtor arises out of an order dated 20th March, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Execution Case No. 30 of 1997, by which the learned Civil Judge refused to stay execution proceeding and directed the bailiff to execute the writ of delivery of possession of the premises in question by breaking open the padlock, if necessary, positively within 18.04.2013.

(2.) IT appears from the materials on record that the predecessor -in -interest of the opposite parties/decree holders instituted Title Suit No. 372 of 1990 against the petitioner/judgment debtor for eviction and recovery of possession of the tenanted premises. The suit was dismissed by the trial court. The order of dismissal of the suit was reversed by the first appellate court in Title Appeal No. 60 of 1997. The first appellate court passed the decree for eviction of the petitioner/judgment debtor and directed the petitioner/judgment debtor to deliver possession of the tenanted premises in favour of the opposite parties/decree holders within 3 months from the date of the order. The judgment and decree passed by the first appellate court in Title Appeal No. 60 of 1997 was affirmed by the High Court on 20th December, 2012 in Second Appeal No. 390 of 1998. The petitioner/judgment debtor unsuccessfully moved the Supreme Court of India where the petition for Special Leave to Appeal (Civil) 23911/2013 preferred by the petitioner against the judgment and decree of the High Court was dismissed on 2.9.2013. In the meantime, the petitioner/judgment debtor filed an application before the executing court, praying for stay of execution of the decree. But the executing court rejected the application filed by the petitioner and directed the bailiff to execute the writ of delivery of possession of the tenanted premises by breaking open the padlock, if necessary, within 18th April, 2013. The said order passed by the executing court on 23.3.2013 is under challenge in this revision.

(3.) ON perusal of the decision of "Mulraj V. Murti Raghunathji Maharaj" reported in : AIR 1967 SC 1386, it appears from paragraph 10 that as soon as the court has knowledge of any stay order, it must stay the further proceeding in compliance with the direction given by the higher court. While I fully agree with the above proposition of law laid down by the Supreme Court of India, I find from the lower court record that the learned Judge of the executing court has stayed the operation of the order of executing writ of delivery of possession of the tenanted premises by passing an order dated 12th April, 2013. Accordingly, there is no illegality on the part of the executing court in making compliance with the direction given by the High Court in the instant revisional application. However, the possession of the tenanted premises was delivered in favour of the opposite parties by the bailiff on 10.4.2013 and there is nothing on record to presume that either the bailiff or the executing court had the knowledge about the stay order granted by the High Court before executing the writ of delivery of possession. Since the stay order granted by this court on 10.4.2013 has become infructuous due to delivery of possession of the tenanted premises before communication of the stay order of the High Court to the bailiff or the executing court, I cannot persuade himself to hold that the possession of the tenanted premises will be again restored in favour of the petitioner/judgment debtor as contended on behalf of the petitioner.