Full Judgment
ORDER
SHEET SHEET NO.1 WP No.687 of 2013 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE IN THE MATTER OF:SMT.
CHANDRIMA CHATTERJEE & ORS.Versus THE C.E.S.C.LTD.& ORS.BEFORE: The Hon'ble JUSTICE ANIRUDDHA BOSE Date :
29. h August, 2013.
Appearance: Mr.Biswanath Mitra, Advocate with Mr.Sumit Sen, Advocate..for the petitioner.
Mr.T.M.Siddiquie, Advocate..for the State.
Mr.B.B.
Sarkar, Advocate, Ms.Iti Dutta, Advocate, Mr.A.Chatterjee, Advocate with Ms.Priti Jain, Advocate..for respondent nos.6,7 & 8.
Mr.D.Mukherjee, Advocate..for C.E.S.C.LTD.The Court:- Affidavit-in-reply has been filed on behalf of the writ petitioners and the same be kept with the records.
This writ petition is an offshoot of a partition suit instituted by one Bholanath Mukherjee, since deceased against respondent Nos.6 and 7.
The respondent No.8 is the son of the respondent nos.6 and 7.
The subject of dispute in the partition suit being T.S.No.651 of 1994 (Sr.Bholanath Mukherjee and ORS.versus Sr.Sudipta Bhattacharjee and Ans.) instituted before the learned Judge-in-charge of VIIIth Bench, City Civil Court, Kolkata is premises no.72, Sisir Bhadhuri Sarani, Kolkata-700 006 under AmheRs.Street Police Station.
Final decree in the said suit has been passed on 10th August, 2011, apportioning respective portions of the premises in favour of the litigating parties.
However, a review petition has been filed in respect of this final decree, being Misc.
Case No.1471 of 2012.
The review petition has been filed by the defendants whereas the plaintiffs in the suit have instituted execution proceeding, which has been registered as E.C.No.27 of 2013.
It is admitted position that in the event the final decree remains valid, the meter board of the premises in question would fall in the portion allotted to the plaintiffs, who are the writ petitioners before me.
Main prayer of the petitioners is for direction upon C.E.S.C.LTD.for removal of the meter belonging to the defendants/respondents.
Such prayer seems to me legitimate per se, but contention of the respondents is that till the final decree is eventually sustained, if at all, apportionment specified in the final decree would not reach finality and removal of meter, at this stage, would not be warranted.
Case of the writ petitioners on the other hand is that there is no stay of the operation of the final decree and the said application has already been filed for execution of the decree by the petitioneRs.In my opinion, it would be well within the rights of the parties to have their meter placed in the respective allotments but such apportionment has not yet reached finality and the learned City Civil Court, Kolkata is in seisin over the matter.
In these circumstances, in my opinion the writ petitioners ought to apply before the executing Court for removal of meter.
I am not making any comment on merit of the case of the writ petitioneRs.and it would be for the executing court to decide that issue.
This writ petition, if entertained, would lead to multiplicity of judicial proceedings.
On behalf of C.E.S.C.Ltd., question has been raised as to who would bear the expenses for such removal.
That issue also, in my opinion, ought to be adjudicated by the executing court.
The C.E.S.C.LTD.shall abide by the direction of the executing court on the question of shifting of meter and the parties shall be bound by the direction of the executing Court so far as disbursement of expenses of such shifting of meter would involve.
The writ petition stands disposed of accordingly.
Since C.E.S.C.LTD.has not filed any affidavit in this matter, allegations against them shall be deemed not to have been admitted.
There will, however, be no order as to cost.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(ANIRUDDHA BOSE, J.) nm A.R.(C.R.)