Calcutta High Court (Appellete Side)
Lokenath Ghosh vs Niva Roy (Behara) And Another on 16 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
16.11.2017
21
md. S.A. 131 of 2017
With
. CAN 7619 of 2017
Lokenath Ghosh
-Versus
Niva Roy (Behara) and another
Mr. Aniruddha Chatterjee
Mr. Surya Prasad Chattopadhyay
.. for the appellant
Mr. Partha Pratim Roy
Mr. S.P. Lahiri
... for the respondent
Re: CAN 7619 of 2017 The application is filed by the defendant- appellant for the purpose of recording that the occupation charges in respect of the decretal premises have been cleared till the month of June, 2017.
By an order of July 10, 2017 passed at the time of admission of the appeal, the appellant was directed to deposit all arrear occupation charges till the month of June, 2017 at the rate at which it was last paid or deposited. Such exercise was required to be completed within two weeks from the date of the order. The other part of the order was for the appellant to pay occupation charges at the rate of Rs.10,000/- per month from July, 2 2017 with which the present application has no nexus.
It appears that out of the total of 141 challans on account of payment or deposit of rent till June 2017, the appellant could only deposit 127 challans and could not immediately produce the balance 14 challans within the time of two weeks set by the order dated July 10, 2017. The appellant, however, sought leave of the executing court to pay the money in lieu of the 14 challans that he could not deposit. This prayer was made by way of abundant caution so that the appellant was not said to be in default or lose the protection granted by the order of July 10, 2017.
It subsequently transpired that even the 14 missing challans were searched out by the appellant and presented before the executing court. The executing court refused to accept such delayed deposit of the challans on the ground that the time set by this Court by the order dated July 10, 2017 had expired.
The first part of the order dated July 10, 2017 required only the payment of the occupation charges till June, 2017 to be completed within a period of two weeks of such order. There was no default in such regard; only the proof of payment could not be demonstrated for 14 of the 3 141 months, but the appellant was ready to make the payment in respect of such months despite his assertion that the payments had been previously made. Within reasonable time thereafter the 14 missing challans were produced.
The executing court should not have been hyper-technical or so strict as to proceed with the execution proceedings upon noticing that there was no default on the part of the appellant in paying the occupation charges for the 141 months till June, 2017.
Accordingly, CAN 7619 of 2017 is disposed of by recording that the occupation charges till the month of June, 2017 in terms of the first part of the order dated July, 10, 2017 have been paid.
The only default that may now arise is in respect of the second part of the order for the current and future occupation charges in terms of the order dated July 10, 2017.
The parties agree that till date there is no default in paying the current occupation charges. As a consequence, the impugned decree will remain stayed till there is any default in payment of the future occupation charges.
4There will be no order as to costs.
(Sanjib Banerjee, J.) (Sabyasachi Bhattacharyya, J.)