IMPORTANT POINT
The refusal of stay based on the conduct of the judgment-debtor and the principles of res judicata, as well as the emphasis on expeditious disposal of execution proceedings, were the central legal points established in the judgment.

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated February 17, 2024, passed by the learned Additional District Judge 2nd Court, Sealdah, District-South 24 Praganas, in Misc. Appeal No. 4 of 2024.

2. The Misc. appeal was filed by the petitioner, being aggrieved by an order dated January 4, 2024 passed by the Learned Civil Judge, Junior Division, 2nd Court at Sealdah in Misc. Case No. 25 of 2010. Misc. case No. 25 of 2010 was an application under Order 21 Rule 97 of the Code of Civil Procedure. The learned executing court allowed execution of the decree through police help.

3. By the order impugned, the learned appellate court rejected an application for stay, filed in connection with the Misc. appeal. The application for stay was filed by the petitioner/judgment debtor/appellant, for stay of the proceedings in Title Execution Case No.42 of 2004, till disposal of the miscellaneous appeal.

4. The points taken in the stay application were that, the decree passed in Title Suit No. 393 of 1984 dated April 30 2024 suffered from lack of jurisdiction and was a nullity. The executability of the degree had already been questioned in the executing court. The decree on the ground of default was erroneous as the challans could not be produced at the relevant time. The same were filed in the execution case. The decree was passed ex parte as the learned Advocate for the petitioner was absent. The PW1 and PW2 could not be cross-examined. The judgment-debtor failed to adduce evidence. The Misc. Case No.47 of 2004 praying for setting aside the ex parte decree was dismissed as not maintainable. A title appeal was filed which was also dismissed by upholding the decree of eviction on the ground of default. If the records were consulted, it would be clear that rent had been paid and the challans were available.

5. All such objections had been raised in the application under Section 47 of the Code of Civil Procedure, which was registered as Misc. Case No.70 of 2008. The challans were also produced in Misc. Case No. 70 of 2008. Unless the execution proceeding was stayed, the Misc. Appeal would be rendered infructuous, and the petitioner would suffer irreparable loss and injury. It was further contended that the writ of possession was not sought to be executed in the normal way. The bailiff’s report was manufactured.

6. Mr. Aniruddha Chatterjee, learned advocate for the petitioner submitted that the learned appellate court ought to have appreciated the cardinal principle of law that during pendency of an appeal, the proceeding from which the appeal arose ought to be stayed, otherwise the situation would become irreversible and would also preclude a fair as just decision in the appeal. Mr. Chatterjee further submitted that the application under Section 47 of the Code of Civil Procedure was also pending before the learned execution court, being Misc. Case No. 70 of 2008. All the objections with regard to the executability of the decree had been taken in the said Misc. Case. The judgment-debtor had already raised the question with regard to discharge, execution and satisfaction of the decree. According to the judgment debtor, the decree was not executable as it was a nullity. The ground of default was wrongly held to be proved by both the courts. The rent deposit challans were filed in the Misc. Case No.70 of 2008. They would indicate that the suit was decreed on erroneous appreciation of evidence.

7. It was further contented by Mr. Chatterjee, that the earlier orders of dismissal of stay applications by the executing court would not be a deterrent for the learned appellate court to grant a stay of the execution proceedings, till disposal of the appeal. Mr. Chatterjee submitted that the appeal may be directed to be disposed of within a short while and stay of the execution proceeding till the disposal of the appeal, may be granted by this court.

8. Mr. Halder, learned Advocate for the decree-holders/opposite parties submitted