PANNALAL BASU Vs. UJJALA DAS

JUDGEMENT

(1.) The revisional application under Article 227 of the Constitution of India is at the instance of the decree holder in a suit for declaration of title and recovery of possession and is directed against Order No. 34 dated December 12, 2017 although, according to the petitioner, the order is dated December 19, 2017 passed by the learned Civil Judge (Junior Division) 4th Court at Sealdah, in Title Execution No. 4 of 2015.

(2.) The judgment debtor/opposite party after suffering a decree of eviction filed an application under Order 21 Rule 97 of the Code of Civil Procedure setting up her independent right, title and interest over the suit property which has been registered as Miscellaneous Case No. 21 of 2017 before the learned Executing Court. In said Miscellaneous Case, an order staying the further proceedings of the execution case was passed by the learned executing Court at the instance of the judgment debtor/ opposite party on May 20, 2017. The said order of stay was recalled by the learned executing Court on an application being filed by the decree-holder on June 17, 2017, vide Order No. 33 dated November 18, 2017 with the finding that whether the Miscellaneous Case is maintainable or not, it is to be decided at the time of trial of the Miscellaneous Case and the learned Appellate Court in Title Appeal No. 11 of 2015 has affirmed the judgment passed in title suit No. 55 of 2018. So execution case being Title Execution Case No. 4 of 2015 cannot be stayed as that would amount to violation of the order passed by the appellate Court.

(3.) The decree holder thereafter filed an application before the learned executing Court on December 19, 2017 praying for fixation of a date of argument of the application filed by the decree holder on January 6, 2018 under Rule 208 of the Civil Rules and Orders and also fixation of a date of hearing of the Miscellaneous Case No. 21 of 2017.