The violation of conditional order of stay and the executability of the decree against a dead person were central legal points established in the given judgment.

JUDGMENT

Subhasis Dasgupta, J. - This revisional application under Article 227 of the Constitution of India, is directed against two orders, dated 27th September, 2022, and 11th November, 2022, passed in Ejectment Execution Case No. 176 of 2015, directing delivery of possession of decretal property to decree holder with assistance of police and Seal Bailiff, with a further direction upon the Seal Bailiff to break open padlocks, bolts and nuts, if necessary, outside and inside shutter gate and doors of the decretal premises at the time of execution.

1. Mr. Arijit Bardhan, learned advocate appearing for the petitioner submitted that a judgment and decree dated 16th September, 2015, passed in Title Appeal No. 14 of 2013 had been sought to be executed, which was challenged upon preferring an appeal vide S.A. No. 281 of 2016 before this Court.

2. Mr. Bardhan further submitted that such Second Appeal had already been admitted upon formulating substantial question of law, and granting stay of further proceedings of Ejectment Execution Case No. 176 of 2015 pending before Learned Judge, 5th Bench, Presidency Small Causes Court, Calcutta, till disposal of application for stay, subject to the fulfillment of certain conditions, as enumerated in the order itself.

3. Mr. Bardhan candidly submitted that there had been some laches with regard to the fulfillment of the conditions pertaining to occupational charges, as specifically disclosed in the stay order S.A. No. 281 of 2016.

4. According to Mr. Bardhan, the occupational charges, however, had been paid by the mother of the petitioner till November, 2018.

5. The mother of the petitioner challenged the decree of eviction, passed in the Title Appeal No. 14 of 2013, preferring S.A. No. 281 of 2016.

6. Ultimately, the mother of the petitioner died on 24th October, 2022. The petitioner happens to be the son of the deceased mother, and a daughter are the only legal heirs of the appellant vide S.A. No. 281 of 2016.

7. Upon furnishing such inputs regarding the death of the mother of petitioner, Mr. Bardhan contended that the impugned orders, under challenge, intended to execute the decree, could not be allowed to be executed, as order had been passed against a dead person.

8. Argument was further raised by Mr. Bardhan that when CAN application had been filed in connection with S.A. No. 281 of 2016, wherein the petitioner had already been arrayed as a party, with a prayer for substitution and/or transposition of the petitioner to the category of appellant, instead of his deceased mother/appellant, pending decision of such CAN application, the decree could not be allowed to be executed.

9. Argument was also raised by Mr. Bardhan that there had been false statement made in affidavit filed, as evident from order dated 27.9.2022, that there had been no appeal pending in higher forum, and for such mis-statement, decree should not be executed.

10. Incidentally, it was submitted by Mr. Bardhan that arrears of occupational charges, in terms of the order dated 7th August, 2018, passed in S.A. No. 281 of 2016, even could be directed to be deposited by the petitioner, to which the petitioner had no objection, upon consideration of his lack of knowledge of pending execution proceedings.

11. Mr. Partha Pratim Roy, learned advocate appearing for the opposite parties/decree holders, replied upon adverting to a copy of the execution application filed before the court below, that there had been deliberate violation of conditions of stay order, passed in S.A. No. 281 of 2016, and when the petitioner himself was one of the parties to the execution proceedings, as judgment-debtors, plea of ignorancy was nothing but a ploy to frustrate the decree granted in this case.

12. Mr. Roy further contended that there had been two appeals preferred, challenging the decree granted by the First Lower Appellate Court, one by the mother of the petitioner vide S.A. No. 281 of 2016, and another by petitioner/son being S.A.T. No. 583 of 2015. Such a