Shri K.Hydroos v. Shri P.K.Hassan Ali

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CO/47/2023 Shri. K.Hydroos Vs.

Shri. P.K. Hassan Ali Mr. K.M.B Jayapal ... for the petitioners Ms. Anjili Nag ... for the respondent September 20, 2023 [SR] Item No.8 It reminded me of a celebrated observation of Sir Vivian Bose that the real trouble starts after getting decree. This is one of such example where the judgment debtor, who was unsuccessful at every tier of the judicial system, is attempting to thwart the decree obtained by the decree holder at the execution stage.

The suit for recovery of possession, mesne profit and other consequential reliefs filed by the decree holder/opposite party stood decreed by the Trial Court. The unsuccessful judgment debtor, which includes the petitioner no.1 herein, preferred a first appeal before the first appellate court. A plea was taken that the decree holder and the petitioner no.1 herein being the fullblood brothers having acquired an undivided interest of the properties left by their ancestor cannot get a decree for eviction against other co-sharers. It further appear that during the pendency of the suit, the partition suit filed between the cosharer was decreed in final form and the final decree was brought to the notice of the Court. A plea was sought to be taken

before the First Appellate Court that since the petitioner no.1 being the co-sharer in respect of the joint property, at one point of time, the suit for eviction at the behest of the co-sharer is not maintainable. Interestingly, not only in the deposition but also before the Appellate Court, the petitioner no.1 stood firm on his stand that he is not in physical possession of the decretal property which he also admitted to show in the crossexamination. A point is sought to be raised before me that the petitioners are in joint possession of the decretal property and the moment the Appellate Court has observed that the decree for eviction shall not be construed to have been passed against the petitioner no.1, the Court ought to have stayed the execution proceeding.

I am unable to persuade myself to agree with the submission of the leaned advocate for the petitioner. The First Appellate Court categorically observed on the basis of the submissions made by the petitioner no.1, not only in the cross-examination but at the time of hearing that he is not in physical possession of the decretal property and taking such stand to be sacrosanct, the Appellate Court observed that the decree for eviction cannot be passed against the petitioner no.1 as he is not in physical and actual possession of the decretal premises.

The second appeal at the behest of the petitioner no. 2 before the High Court could not yield any fruitful result. The High Court dismissed the second appeal at the stage of admission meaning thereby the judgment and decree as modified by the First Appellate Court stood affirmed.

It is inconceivable and improbable that the petitioner no.1 would approbate and reprobate at the different stages of the proceedings, nor the new case can be permitted to be made out at the bar. The petitioner no.1, in the cross-examination, admitted that he is not in physical possession of the decretal property and stood firm on the said stand even before the Appellate Court.

The petitioner no.1 cannot take rebound and contend before the Executing Court that he is in possession of the decretal premises along with the petitioner no.2, who has suffered the decree for eviction.

It further appears that the application for police help has already been allowed but the decree holder is unable to take possession thereof because of the obstacles and/or hurdles being created at the execution stage.

I do not find any merit in the instant revisional application. The same is hereby dismissed. No order as to costs. Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. )