BIMALAPATI BANERJEE Vs. SAILENDRA NATH GANGULY

JUDGEMENT

(1.) Joggeswar Banerjee, one of the opposite parties, had filed a suit in the Presidency Court, of Small Causes praying 'inter alia' that Bimalapati, petitioner in these proceedings, be ejected from premises No. 16, Blacquire Sq., Calcutta. The suit was dismissed by the trial Judge. On appeal a decree in ejectment was passed. The defendant petitioner Bimalapati filed a Second Appeal (S. A. 513 of 1955) against the said decree. This appeal was admitted on March 11, 1955 after a preliminary hearing under Order 41, Rule 11, Civil P. C. On the same day the defendant-petitioner filed an application for restraining the plaintiff-decree-holder from executing the decree and also for an ad interim order pending the hearing of the Rule. A Rule was issued to show cause why further proceedings in execution should not be stayed. An ad interim order was passed on the following terms :

(2.) In pursuance of the order passed by this Court a letter dated March 16, 1955 was issued communicating the terms of the order. This letter communicating the Court's order was received in the English Department of the Presidency Small Cause Court on March 18. The Registrar of the Court of Small Causes sent the letter from this Court to the passing clerk of the 4th Bench of that Court in which the execution case was pending.

(3.) It appears from the records that a tabular statement for levying execution bearing the date March 21, 1955 was filed by the decree-holder on March 24th; this was subsequent to the receipt of the said order from the High Court. As required under the rules a draft Writ for delivery of possession was filed by the decree-holder on March 28. On April 5, the Writ for delivery of possession was issued under the signature of the Superintendent to the Bailiff Sailendra Nath Ganguly, one of the Opposite Parties for delivery of possession as under the decree. The returnable date was fixed for 30-4-1955.