Sm. Ira Mukherjee and anr. Vs. Hirendra Nath Bhattacharjee and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059453
CourtKolkata High Court
Decided OnMay-16-2012
JudgeI. P. MUKERJI
AppellantSm. Ira Mukherjee and anr.
RespondentHirendra Nath Bhattacharjee and ors.
Excerpt:
order sheet g.a.no.597 of 2012 eos no.36 of 1987 in the high court at calcutta ordinary original civil jurisdiction original side sm. ira mukherjee & anr. versus hirendra nath bhattacharjee & ors.before: the hon'ble justice i.p.mukerj.date :16. h may, 2012. appearance: mr.r.l. mitra, advocate appears.: the court : - the corrections suggested in the order dated 12th april, 2012 are conveniently shown in the schedule below: let the order dated 12th april, 2012 be corrected in accordance with the corrections in the said order indicated in the schedule below: schedule “the court: the suit was decreed on 3rd september, 1998. the decree was carried in appeal. the appeal court remanded the matter back to the trial court for de novo trial of the suit. at the time of hearing of the suit before the court below prior to passing of the decree dated 3rd september, 1998, the (plaintiffs had) defendant no.11 having a counter claim had tendered some documents in evidence. those documents are in the custody of this court. this is an application by the (plaintiff) defendant no.11 for return of two original conveyances both dated 6th september 1986 as described in prayer (a) of the petition. it is made under order xiii rule 9 of the code of civil procedure. the return of these documents is opposed by the appearing plaintiffs (defendants).they say that the (plaintiffs) defendant no.11 will dispose of the property. but to prevent the (plaintiffs) defendant no.11 from dealing with the property, the (defendants) plaintiffs are to take substantive steps and not by detention of the (plaintiffs) title deeds of the defendant no.11. the firs.proviso to order xiii rule 9 of the code of civil procedure covers the point. it says that a document will be returned to a party before trial if a certified copy thereof is tendered in court and an undertaking is furnished by the (plaintiff) defendant no.11 to produce the original, if required to do so. in my opinion, if the two following conditions are fulfilled, then there is no difficulty in allowing the (plaintiffs) defendant no.11 to take back the documents. (i) the advocate on record for the (plaintiff) defendant no.11 gives an undertaking to this court on behalf of (the plaintiff) his client to produce the two documents whenever called for by this court. (ii) the originals will be taken back after furnishing certified copies of the two documents concerned to the registrar, original side. the above undertaking is recorded by this court. upon fulfilling the second condition, the registrar, original side will forthwith deliver the two documents mentioned in prayer (a) of the petition to the advocate on record for the (plaintiffs) defendant no.11. this application is allowed to the above extent. registrar, original side and all parties concerned are to act on a signed photocopy of this order on the usual undertaking.” **the bracketed portions of the schedule should be deleted from the order. **the underlined portions should be inserted in the order. let a fresh certified copy be issued after incorporation of the above correction in the original order. department and all parties to act on a signed photocopy of this order on the usual undertaking. (i.p.mukerji, j.) dg/
Judgment:

ORDER

SHEET G.A.No.597 of 2012 EOS No.36 of 1987 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE SM.

IRA MUKHERJEE & ANR.

Versus HIRENDRA NATH BHATTACHARJEE & ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date :

16. h May, 2012.

Appearance: Mr.R.L.

Mitra, Advocate appeaRs.: The Court : - The corrections suggested in the order dated 12th April, 2012 are conveniently shown in the Schedule below: Let the order dated 12th April, 2012 be corrected in accordance with the corrections in the said order indicated in the Schedule below: Schedule “The Court: The suit was decreed on 3rd September, 1998.

The decree was carried in appeal.

The appeal Court remanded the matter back to the trial Court for de novo trial of the suit.

At the time of hearing of the suit before the Court below prior to passing of the decree dated 3rd September, 1998, the (plaintiffs had) defendant no.11 having a counter claim had tendered some documents in evidence.

Those documents are in the custody of this Court.

This is an application by the (plaintiff) defendant no.11 for return of two original conveyances both dated 6th September 1986 as described in prayer (a) of the petition.

It is made under Order XIII Rule 9 of the Code of Civil Procedure.

The return of these documents is opposed by the appearing plaintiffs (defendants).They say that the (plaintiffs) defendant no.11 will dispose of the property.

But to prevent the (plaintiffs) defendant no.11 from dealing with the property, the (defendants) plaintiffs are to take substantive steps and not by detention of the (plaintiffs) title deeds of the defendant no.11.

The fiRs.proviso to Order XIII Rule 9 of the Code of Civil Procedure covers the point.

It says that a document will be returned to a party before trial if a certified copy thereof is tendered in Court and an undertaking is furnished by the (plaintiff) defendant no.11 to produce the original, if required to do so.

In my opinion, if the two following conditions are fulfilled, then there is no difficulty in allowing the (plaintiffs) defendant no.11 to take back the documents.

(i) The Advocate on Record for the (plaintiff) defendant no.11 gives an undertaking to this Court on behalf of (the plaintiff) his client to produce the two documents whenever called for by this Court.

(ii) The originals will be taken back after furnishing certified copies of the two documents concerned to the Registrar, Original Side.

The above undertaking is recorded by this Court.

Upon fulfilling the second condition, the Registrar, Original Side will forthwith deliver the two documents mentioned in prayer (a) of the petition to the advocate on record for the (plaintiffs) defendant no.11.

This application is allowed to the above extent.

Registrar, Original Side and all parties concerned are to act on a signed photocopy of this order on the usual undertaking.”

**The bracketed portions of the schedule should be deleted from the order.

**The underlined portions should be inserted in the order.

Let a fresh certified copy be issued after incorporation of the above correction in the original order.

Department and all parties to act on a signed photocopy of this order on the usual undertaking.

(I.P.MUKERJI, J.) dg/