Smt. Padma v. Shri. Dharmaraj
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/16/2023 Smt Padma Vs.
Shri Dharmaraj Mr. Deep Chaim Kabir Mr. Ajith Prasad ... for the petitioner Mr. K. Vijay Kumar ... for the opposite party No.1 Mr. Rakesh Kumar ... for the opposite party No.2 April 26, 2023 [SR] Item No.4 Leave is granted to the learned advocate for the petitioner to amend the cause title of the revisional application to include the challenge to the order dated 28th February, 2023 passed in the connected Execution Case. The petitioner filed a suit in the court of learned Joint Civil Judge Senior Division, at Port Blair being Other Suit No. 115 of 2012 subsequently re-numbered as O.S.No.91 of 2013 for eviction of the opposite party no.1, from the suit property and damages.
The said suit was decreed ex parte on July 30, 2014 and the appeal taken out by the opposite party no.1 being Other Appeal No.22 of 2014 was dismissed on December 01, 2020.
The petitioner has put the said decree into execution giving rise to the Other Execution Case No.6 of 2014. In the said execution case the opposite party no.2, raising a dispute with regard to identity of the suit property, has filed an application under Order 21 Rules 97, 98 and 101 of the Code of Civil Procedure thereby has prayed for a declaration that he is not liable to be evicted from suit property in execution of the said decree.
The said application has been registered as Misc.Judl.Case No.27 of 2021.
The petitioner is challenging different orders passed in the execution case and in the said Misc.Judl.Case. The executing court by one of the orders impugned being order No.77 dated March 16, 2023 has dismissed an application filed by the petitioner praying police assistance to execute the decree on the ground that without resolving the dispute raised in the said Misc.Judl.Case such relief cannot be granted to the petitioner.
The record demonstrates a little progress in the said Misc.Judl. case though filed in the year 2021. Mere pendency of the said case cannot arrest further proceeding of the execution case.
The opposite party no.2 has also not yet deposed in the Misc.case though at his instance summons have been issued to two authorities whom he wants to cite as witnesses in the said Misc. case to substantiate his allegation. The learned advocates for the parties inform this Court that June 12, 2023 is the next date fixed in the said Misc.Judl.Case.
The opposite party no.2 is directed to file his evidence in chief in the said Misc.Case on the said date positively and shall make himself available for cross-examination. The executing court is requested to conclude the evidence of the opposite party no.2 on the said date and for some unavoidable reason, if the evidence of the said witness cannot be completed on the said date, it must be concluded within seven days thereafter.
In the event the opposite party no.2 fails to comply with the above direction, his evidence shall stand closed. The executing court, while proceeding with the said Misc.Judl. case, shall scrutinize the record as to whether the issue of identity of the suit property sought to be disputed in the said Misc.case has already been addressed at any stage of the proceeding, if so, shall pass necessary orders accordingly.
The pendency of the said Misc. case shall not entail dismissal of the application of the decree holder for police help, it can at best be deferred for a decision in the Misc.case.
Therefore, the order No.77 dated March 16, 2023 passed in the Other Execution Case No.6 of 2014 is set aside. The executing court shall decide the application after disposal of the said Misc.Case in accordance with law. The executing court is requested to dispose of the Misc.Judl. Case No. 27 of 2021 as expeditiously as possible preferably by the end of the month of October, 2023 and in doing so, shall not entertain the prayer of the parties for any unnecessary adjournment.
CO/16/2023 is disposed of with the above terms. There shall however be no order as to costs.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
Urgent certified copy of this order, if applied for, be supplied to the learned advocates for the respective parties upon compliance of usual formalities.
( Biswajit Basu, J. )