Order no.2               Date: 22.06.2023

Ld. Advocate for the decree holder is present.

Ld. Advocate for the judgment debtor no.3 is present.

The joint Misc. Application filed by the decree holders and judgment debtor no.3 on affidavit on the basis of amicable settlement between them is taken up for consideration and hearing.

Ld. Advocate for the judgment debtor nos. 1 and 2 appears and files an unsigned order passed by Civil Judge (Senior Division) Sealdah in TS 209 of 2023 along with photo copy of plaint of TS 209 of 2023. No certified copy of the order filed by judgment debtor nos.1 & 2.

Perused. Considered.

Heard Ld. Advocate for the decree holders and Ld. Advocate for the judgment debtor no.3 as well as Ld. Advocate for the judgment debtor no.1 and 2.

Ld. Advocate for the judgment debtor nos.1 and 2 raised strong objection against the compromise petition filed by the decree holders and judgment debtor no.3 on the ground that Hon’ble Civil Judge (Senior Division) Sealdah in TS 209 of 2023 had been pleased to pass an order of injunction dated 15.06.2023 directing the plaintiff  and the defendant to maintain status quo over this suit properly as mentioned in the schedule of the plaint and injunction application in respect of nature, character and possession of the same as on this date till next date to the said order.

On perusal of the Misc. Application dated 21.06.2023, we find that the judgment debtor no.3 declares that she is a co-sharer of undivided 50% right title and interest in the flat in question in which the decree holders are presently residing and the judgment debtor no.3/Piya Mukherjee is ready to comply the direction passed in judgment of CC/125/2017. It has been directed that the judgment debtors would accommodate the decree holders, a flat measuring about 421 sq. ft. carpet area on the ground floor of the premises in question. But after construction of the building the decree holders have been provided with a flat measuring about 211 sq. ft. covered area. There is no flat/space left in the premises no.6D/1C, Gopal Chandra Bose Lane, P.O. & P.S.-Sinthee, Kolkata-700050 to accommodate the decree holders as per judgment dated 31.01.2019 in a area of 421 sq. ft. Judgment debtor no.3 frankly admits that she, her co-sharer and the developer who are also judgment debtors herein are equally responsible for the short fall deficit of 210 sq. ft. and she is ready to compensate by way of giving 1/3 share of money of the total present market  valuation of the short fall area 210 sq. ft. to the decree holders as per mutual settlement. Both the decree holders and the judgment debtor no.3 jointly prays for acceptance of the terms and conditions arrived between them to settle the dispute.

On perusal of the plaint of TS 209 of 2023 filed by judgment debtor nos.1 and 2, we find that the schedule of the property mentioned is one self content flat being flat no.1A measuring about 421 sq. ft. built up area on the ground floor of premises no.6D/1C, Gopal Chandra Bose Lane, P.O. & P.S.-Sinthee, Kolkata-700050 consisting of two bed rooms, one kitchen, one toilet and one W.C., one lobby and one verandah. It also appears in paragraph no. 9 of the plaint that the parties to the suit i.e. Sri Somnath Banerjee the plaintiff and Mrs. Piya Mukherjee defendant are in occupation of the said suit flat through a occupier namely Arati Mukherjee  w/o late Shibnath Mukherjee.

In the instant application we find, the flat in question is measuring about 211 sq. ft. on the ground floor fully described by annexing a map with the Misc. Application. The description of this flat does not tally  with the suit property mentioned in TS 209 of 2023.

So, the order dated 15.06.2023  passed in TS 209 of 2023 by Civil Judge Senior Division Sealdah cannot be taken into consideration in this case. We do not find any legal impediment to allow terms and condition compromise arrived at by the decree holders and judgment debtor no.3. Moreover, the terms and condition arrived at amicably by the parties are legal and valid.

The judgment debtor no.3 is at liberty to execute the Deed of Conveyance in favour of the decree holders to the extent of her share in the suit flat. She is also at liberty to compensate the decree holders in terms of money for 1/3 of the total short fall in sq. ft. of the flat in question of present market value.

Thus the Misc. Application dated 21.06.2023 is thus disposed of.