Extension of stay rejected by session court after grant of stay for 1 month.
Guest
(Querist) 27 December 2014
This query is : Resolved
Respected Members,
My appeal against ex-parte judgment passed on me on year 2012 was admitted in last week on Sept'2014 subjected to 40K deposit in CJM Cash counter on behalf of wife in Session Court. We also filed an appeal in the same day along with the main to grant stay of impugned operations till disposal of the case. We deposited the amount within timeframe and OP Wife also withdrew the amount from CJM Cash counter on 11.12.2014. The appeal was admitted and judge passed and order for stay of impugned operation till 22.12.2014. The DW/WA was stayed and warrant recalled and all proceeding stayed in lower court till 22/12/14. But when we put up the matter before session court on 22/12/14 judge rejected on vague ground. The summary of order is "22.12.2014- Today CRL Appeal is fixed for SR and appearance of the respondents. Appellant file hazira along with fresh power. Respondent No 4 appears by power and files hazira through the Ld lawyer. Respondent no 4 file some documents as per firisti. Let it be kept with the case record. Appellant files requisites of notice upon respondent no 1 to 3 in both ways. Issue the same in both ways upon respondent 1 to 3. At this stage appellant files a petition praying for extending the stay of operation of the impugned order in the ground stated therein. Copy not served. Hence the prayer is considered and rejected. Fix 21.01.15 for SR/AD/Appearance against respondent no 1 to 3 and further order."
Request input from experts that whether session court can reject extension of stay once allowed and ground stated therein in the order is sufficient ground for rejection.
Whether I shall file an appeal or CR Revision in High Court for further extension of stay till disposal of appeal and get the same.
What can be the grounds for further stay till disposal.
Although warrant is recalled but because the stay is vacated now, we are tensed because of DW/WA execution in lower court.
Kindly help.
Thank You
Suman
Devajyoti Barman
(Expert) 27 December 2014
Generally if the condition of stay is complied with, it is not vacated. The order passed by the sessions court seems irregular and illegal order and hence amenable to challenge in high court.
Guest
(Querist) 27 December 2014
Dear Sir,
Thank you. As there is Christmas vacation in high courts and closed probably till 2nd Jan kindly suggest how much time can it take for amendment of this order in high court. Our next date in session court is 21/01/15. Can we get stay till further disposal of appeal before that as I have drafted below grounds on my own. Kindly have a review.
1. That the applicant/defendant will suffer an irreparable loss, harassment injury in case the above noted application is not allowed.
2. Rule 5 provides for stay in execution of a decree or an order.
3. The application for further stay has been made without unreasonable delay under Rule 5 (3), (4).
4. Substantial loss will result to the applicant unless such order is made.
5. Petitioner has complied the order of Ld Session Judge within due time and Op wife has withdrawn the same amount from Ld Addl Ld. Court,on 11/12/2014.
6. Ld. Session Court already allowed stay on all frivolous execution on 20/11/2014 till 22/12/2014. Hence court should ought to have considered the application for further stay till disposal as applicant already complied the order of Session Court by depositing Rs. 40000/- by OP wife on 11/12/2014..
7. Petitioner lost the liberty to visit Raiganj as and when situation demands as because the stay is vacated now and applicant is put into great trouble and harassment till further disposal of appeal.
8. Petitioner lost liberty to even enter into Sevak Pally and assess the lost items and register FIR in Police Station.
9. The ground stated in rejection of stay is void, illegal, irregular and is not a sufficient ground for rejection according to Civil Procedure Code 1908 as the condition is already complied with.
10. The property situated in sevak pally house house is unmanned and misutilised/wrongfully utilized which needs security and as the Ld Court through the ex-parte impugned order has not even sent notice to petitioner either before and after the disposal of the case, hence allocating room on ad hoc basis to Op wife stands challenged. The handover of possession was not even done in front of petitioner which stands question both in court of law and justice.
11. That there is no record in the court of Addl Judicial Magistrate Raiganj that wife Op got custody of the said household since 28/may-2014 nor there is any mention in the impugned execution order sheets that Police has made such arrangements in absence of Petitioner which is bad in law.
12. That WA execution on petitioner stands challenged as the monthly maintenance amount awarded to Petitioner is highly excessive and petitioner already left Wipro on 02.01.2014 and income was as less as………………. Copy of Salary Sheet and Final Release Letter is attached herewith.
13. That the OP wife has suppressed the fact in the Domestic Violence Application Sheet that she also applied for Divorce when Petitioner first came to know of the same on 1st Part of Dec’2014 and hence a RTI application related to CPC-HC has been sent to the concerned authority whose correspondence is attached herewith.
14. Even though Op wife is a well qualified lady who is MA in Bengali can find a suitable Job which she was temporarily engaged in the year of 2012 in Chattrapur Ramkrishnapur but she and her family members have a tendency to cause grave harassment and to extort money as much as they can through frivolous and false multiple execution cases with Petitioner which needs to be cross-examined in court of law. Op wife has claimed that petitioner earn around Rs 60000/- pm which is baseless and false. False claim in affidavit and court application is wrong is law and requires punishment.
15. That through 2 GD no ……… on ….. and ……. On ……. In subsequent years by petioner’s father is enough to prove that wife left on her matrimonial house on her own without any reason and now she is claiming alimony/maintenance from petitioner.
Devajyoti Barman
(Expert) 28 December 2014
Without seeing the contents of order the Revisional application can not be commented upon.
The calcutta high court reopens on 5th January.
Dr J C Vashista
(Expert) 28 December 2014
1. Act swiftly before it is late.
2. File an appeal in Calcutta High Court before the Vacation Judge(sitting daily during winter vacation).
3. You can/may/should contact Mr. Devajyoti Barman, an expert on the subject and a local lawyer, after taking an appointmenet with him for filing petition/appeal with application for stay of order passed by lower courts before the Vacation Judge of Calcutta High Court.
ajay sethi
(Expert) 28 December 2014
contact MR Barman in this regard
Rajendra K Goyal
(Expert) 28 December 2014
Contact the expert Devajyoti Barman in the matter.
Guest
(Querist) 29 December 2014
Hello Mr. Devjyoti Barman,
I heard from local lawyers from High Court that High Court may not interfere with interlocutory orders although this seems to be an irregular and illegal order.
My session court date is 22/01. I am tensed as in case high court does not extend within time after 5th opening then that might be a disaster and OP may prefer to execute WA after a put up in lower court/session court.
Kindly suggest.
Many Thanks
Suman
Devajyoti Barman
(Expert) 29 December 2014
I regret to inform that you are not properly advised by your local lawyer.
The interlocutory order is very much amenable to challenge before the high court.
The issuance of W/A is not so easy that on one single default it would be issued. There are many way to counter this which we routinely do for other clients.
T. Kalaiselvan, Advocate 
(Expert) 29 December 2014
You may take the help of our expert Mr. Barman who will be able to guide you further in this matter.
Guest
(Querist) 05 January 2015
Hi Mr. Devjyoti,
Yes As had a verbal conversation with you few days back, I am advised by few senior lawyers that to proceed with a prayer in lower court (i.e Session Court) after serving copy as was stated a ground for last rejection as many a times judge in high court advices advocates to serve a copy of petition within a time-frame and hence can obtain stay. But in my case in session court Session Judge has directly rejected "Copy not served. Hence the prayer is considered and rejected". In second time after serving the copy to respondents even she rejects, then the matter can be put up against the Hon'ble High Court. I rushed to the session court lawyer with all the files. But I need all the learned lawyer's experience and few rulings/case extracts where Judge allow second petition.
Kindly help me.
Many Thanks
Suman
