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Narayan Chandra Modak v. Susanta Kuamr Dutta

Calcutta HC15 Jun 2026CO/3678/2025

Case brief

AI extract

What is this about?

C.O. 3678 of 2025; Narayan Chandra Modak v. Susanta Kumar Dutta; High Court at Calcutta; Civil Revisional Jurisdiction; Om Narayan Rai, J.; stay of execution; ex parte decree; Ejectment Suit No. 76 of 2022; Misc. Case No. 37 of 2025; Order IX Rule 13 CPC; Order XI Rule 13 CPC; Section 5 Limitation Act 1963; condonation of delay; prima facie case for stay; infructuous execution; occupation charges Rs.5,000/- per month; Sealdah; set aside; hear afresh.

What did the court decide?

The impugned order staying the execution case is set aside; the learned Trial Court is directed to hear out the application for stay afresh and pass appropriate orders in accordance with law; no order as to costs; urgent photostat certified copy to be supplied if applied for. ¶23

Narayan Chandra Modak Vs Susanta Kuamr Dutta — Calcutta HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the learned Trial Court could stay the execution case, while the opposite party's application to set aside the ex parte decree with the Section 5 Limitation Act condonation plea remained pending and undisposed, without reaching a conclusion that a prima facie case existed for grant of stay. +1 more

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Court's answer

A Court is not powerless to grant stay of execution even while an application under Section 5 of the Limitation Act, 1963 remains pending in situations that merit such stay, but before passing such orders it must reach a conclusion that a prima facie case has been made out by the applicant for grant of stay.

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Ratio / Principle

The mere reason that the execution case, if proceeded with, would render the Misc. Case infructuous is not a good reason to stay an execution, particularly where the Misc. Case has been filed well beyond the period of limitation; nothing of the required prima facie satisfaction was recorded in the impugned order.

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Key takeaways

Since the impugned order records no prima facie satisfaction as to the strength of the Misc. Case and rests only on the prospect of the execution becoming infructuous despite the Misc. Case being delayed by several months, the order directing stay of the execution case deserved to be interfered with and is set aside.ratio¶19

Detailed headnote1 paragraphs

Civil revision (C.O. 3678 of 2025, High Court at Calcutta, Om Narayan Rai, J.) — The Trial Court (Civil Judge (JD), 1st Court, Sealdah) in Misc. Case No. 37 of 2025 had stayed execution of an ex parte eviction decree (Ejectment Suit No. 76 of 2022, decreed ex parte July 26, 2024) sought to be set aside by the judgment-debtor through an application under Order IX Rule 13 CPC (also recorded as Order XI Rule 13) coupled with a Section 5 Limitation Act, 1963 condonation plea, without disposing of the condonation application or recording any prima facie case for stay, citing only that non-stay would render the Misc. Case infructuous, and directing occupation charges of Rs.5,000/- per month without arrears since the decree. Holding that a prima facie case must first be concluded before staying execution while a Section 5 application pends, and that mere prospective infructuousity is not a good reason to stay execution filed-beyond-limitation Misc. Cases, the High Court set aside the impugned order and directed the Trial Court to hear the stay application afresh in accordance with law; revision disposed of without costs.

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15.06.2026 Item No.7(DL) Court No.06 AJ.

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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION

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C.O. 3678 of 2025

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< Sri Narayan Chandra Modak

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-Vs-

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Sri Susanta Kumar Dutta

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Mr. Gourab Ghosh. …..for the petitioner. 1. Affidavit of service filed in Court today is taken on record.

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Learned Advocate appearing for the petitioner submits that a notice of this revisional application has also been served upon the learned Advocate representing the opposite party in the learned Trial Court.

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None appears for the opposite party despite service.

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This revisional application is directed against an order dated September 06, 2025 passed by the learned Civil Judge (Junior Division), 1^st Court at Sealdah in Misc. Case No. 37 of 2025 which has been registered pursuant to an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 being filed by the opposite party seeking setting aside of an ex parte decree of eviction passed by the learned Civil Judge (Junior Division), 1^st Court at Sealdah in Ejectment Suit No. 76 of 2022.

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Ejectment Suit No. 76 of 2022 had been instituted by the petitioner seeking eviction of the opposite party inter alia on the ground of default in payment of rent and reasonable requirement. The said suit was decreed ex parte on July 26, 2024. About 11 months after the passing of the decree, the opposite party filed an application under Order XI Rule 13 of the Code for setting aside the ex-parte decree along with an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the said application for setting aside the ex parte decree.

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The opposite party also filed an application for stay of the execution case that had been initiated by the petitioner seeking execution of the decree of eviction passed in Ejectment Suit No.76 of 2022.

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The learned Trial Court has entertained the application for stay and stayed the execution case without first disposing of the application under Section 5 of the Limitation Act, 1963. The petitioner is aggrieved by such an order.

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While a Court is not powerless to grant stay of execution even while the application under Section 5 of the Limitation Act remains pending in situations that merit such stay orders, yet before passing such orders the learned Court would have to reach a conclusion that there is a prima facie case made out by the applicant for grant of stay.

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There is nothing recorded in the impugned order to that effect. The only reason given by the learned Trial Court is that the execution case, if allowed to be proceeded with the Misc. Case, would be rendered infructuous. This could not have been and cannot be a good reason to stay an execution that too when the Misc. Case has been filed way beyond the period of limitation.

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While the learned Trial Court has sought to balance the equities by directing payment of occupation charges to the tune of Rs.5,000/- per month, here again the petitioner has been left aggrieved. Learned Advocate appearing for the petitioner submits that the learned Trial Court has not passed any order as regards payment of arrears of the occupation charges since the decree of eviction was passed as far back as on July 26, 2024.

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Since the order does not record any prima facie satisfaction as regards the strength of the Misc. Case that would have justified grant of stay of the execution case and the mere reason that if the execution case is not stayed then the same would become infructuous, does not satisfy the conditions for grant of stay in the present fact situation where the Misc. Case is delayed by several months, therefore the order directing stay of the execution case deserves to be interfered with.

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