Calcutta High Court (Appellete Side)
Deb Narayan Banerjee vs Gita Mukherjee & Ors on 24 November, 2014
Author: Arindam Sinha
Bench: Arindam Sinha
1 24.11.2014
Srimanta 16 C. O. 2440 of 2010 Deb Narayan Banerjee
-versus-
Gita Mukherjee & Ors.
Mr. S. Chakraborty.
...For the Petitioner.
Mr. S. Sen.
...For the Opposite Parties.
Mr. Chakraborty, learned Advocate appears on behalf of the petitioner and Mr. Sen, learned Advocate appears on behalf of the opposite parties.
Order No. 19 dated 29th June, 2010 made by the 13th Additional District Judge, Alipore in Title Appeal No. 231 of 2009 [Smt. Gita Mukherjee & Ors. -Vs. Deb Narayan Banerjee] has been impugned in this application under Article 227 of the Constitution of India. By the impugned order stay of proceedings of Title Execution Case No. 18 of 2009 pending before the learned Civil Judge (Senior Division), 1st Court at Alipore was granted for a limited period on condition that the appellants would deposit the monthly rent and also Rs.500/- per month towards occupational charges along with monthly rent by 10th of each succeeding month.
The petitioner/decree-holder is aggrieved. Reliance is placed on the decision reported in (2005) 1 SCC 705 [Atmaraman Properties Pvt. Ltd. -Vs.- Federal Motors]. 2 It appears that the learned Additional District Judge made the direction in the impugned order by exercise of discretion as no material appears from the record regarding what should be the fair occupation charges for the demise being a self-contained flat on the first floor in premises no. 71C, S. P. Mukherjee Road, Kolkata - 700 026.
On consent of the parties, the matter is remanded to the Additional District Judge for reconsideration on what should be reoccupation charges to be paid by the Judgment- debtor/opposite party to continue to enjoy stay of the said execution case. For the purpose of such adjudication, the parties will be at liberty to file affidavits enclosing material in support of their respective cases on the issue. Such affidavits must be filed within two weeks after communication of this order by the petitioner to the learned Court below. The learned Court below is requested to take up the matter and adjudicate the same at its earliest convenience, preferably within four weeks thereafter. In the meantime, the directions made in the impugned order shall continue.
The application is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
(ARINDAM SINHA, J.)