The court held that the executing court erred in rejecting the third party's application for stay of the execution case without any justified reason.

PRASENJIT MANDAL, J.

1. THIS application is at the instance of a third party and is directed against the Order dated May 25, 2012 passed by the learned Civil Judge (Senior Division), 1st Court, Howrah in Misc. Case No.4 of 2012 arising out of Title Executing Case No.5 of 2011.

2. THE decree-holder/opposite party herein got a decree for eviction of the defendants from the premises in suit from the Hon'ble High Court, Calcutta and at the instance of the decree- holder, the Execution Case No.383 of 2011 was transmitted from the Hon'ble High Court to the District Judge, Howrah and the said execution case was renumbered as Title Execution Case No.5 of 2011 for execution.

3. WHILE the said execution case was pending for disposal, the third party filed an application under Order 21 Rule 97 of the CPC for determination of his right, title and interest in the suit property and his application has been converted into the Misc. Case No.4 of 2012. When such a Misc. case was filed, the third party filed another application for stay of the execution case and accordingly, the learned Executing Court granted stay of the execution case. Subsequently, the decree-holder filed an application for recall of the order of stay.

4. THE decree-holder filed another application raising the question of maintainability of the said Misc. Case, which is still pending. Under the circumstances, by the impugned order, the learned Trial Judge directed that the prayer for stay of the execution case was rejected. The learned Executing Court also fixed the next date, that is, on July 20, 2012 for hearing on the maintainability point of the Misc. Case. This date of hearing, that is, July 20, 2012, is not far away from today. Being aggrieved by such orders, this application has been preferred by the third party.

5. UPON hearing the learned Counsel for the parties and on going through the materials-on-record, I find that while making analysis of the materials-on-record, the learned Executing Court has observed that the Order Nos. 5 and 6 dated February 22, 2012 were apparently routine orders in the handwriting of the Dealing Assistant of the Court and those orders could not be said to have been passed by the application of judicial mind of the P.O. This observation is contrary to the norms, decorum and respect to the predecessor of the Judge. So, this portion of the order cannot be supported and these orders relating to remarks are totally set aside. When a third party files an application under Order 21 Rule 97 of the CPC raising his independent right, due consideration of such a prayer should be done.

6. IN the instant case, the third party has contended that the decree-holder entered into a sale agreement and delivered possession of the suit property in part performance of contract of sale to M/s. Akash Ganga Dealcomm Pvt. Ltd. who inducted the third party as tenant in the suit premises. Accordingly, the said application was filed.

7. ANYWAY, that application shall be considered on merits and the learned Executing Court has fixed the next date on July 20, 2012 for hearing on the maintainability point of the said Misc. Case. When a Misc. Case is filed and it is duly admitted, the question arises whether the prayer for stay of the execution case should be granted or not.

8. IN this regard, the reasons as assigned by the Executing Court that if the petitioner succeeds, he can take the recourse of Section 144 of the CPC, I hold, cannot be supported. In an appropriate situation, the learned Executing Court is at liberty to grant stay of the execution proceeding upon certain terms and conditions. Accordingly, the rejection of the prayer for stay of the execution case without any justified reason, I hold, cannot be supported.

9. WHEN a third party files a Misc. Case under Order 21 Rule 97 according to the decision of Anwarbi v. Pramod D. A. Joshi and Ors. reported in (2000)10 Supreme Court Cases 405, the decree- holder cannot take possession unless such proceeding,