Kolkata: The Calcutta High Court has ruled that filing an appeal against an eviction decree does not automatically halt its execution and that an executing court cannot pass interim orders that virtually operate as a stay in the absence of any order from the appellate court.
Justice Shampa Sarkar set aside an ex parte ad interim injunction by an executing court that had restrained the decree holder from proceeding with eviction despite there being no stay on the decree.
The issue arose during execution of an eviction decree passed after a long-pending dispute over a property. Although an appeal against the decree was pending before the district court, no stay had been granted. During execution proceedings, a party operating from the premises approached the executing court claiming independent rights and sought protection from dispossession.
At the interim stage, the executing court restrained the decree holder from disturbing possession, raising doubts over the enforceability of the eviction decree on the ground of alleged thika tenancy and observing that immediate protection was necessary to avoid irreparable loss. The court reiterated that pendency of an appeal does not suspend execution of a decree and observed that the impugned order had effectively created an automatic stay, which is not recognised in law.
The court noted that the applicant was occupying the premises under a dealership agreement which clearly described the occupation as a leave and licence and expressly denied any right, title or interest in the property, including any claim of tenancy or exclusive possession. In view of these terms, the applicant could not claim an independent right to resist execution.
Justice Sarkar further held that the executing court went behind the decree by questioning its validity on thika tenancy grounds, even though the trial court had already examined the issue and the matter was pending in appeal. The court observed that both the lessee and the dealer could not simultaneously claim thika tenancy and that notices relied upon were issued to the lessee and not to the dealer.
Holding that the basic requirements for granting an interim injunction had not been properly examined, the court set aside the impugned order, vacated the interim injunction and directed the executing court to hear the matter afresh after allowing the decree holder to file objections, clarifying that the application must be decided independently and in accordance with law.