Calcutta High Court (Appellete Side)
Md. Anwar Alam Khan vs Md. Sayed Jan on 14 June, 2018
23 14.06.2018
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No. 1499 of 2018 Md. Anwar Alam Khan
-Vs.-
Md. Sayed Jan, since deceased, represented by Mrs. Md. Sayed Jan & Ors.
Mr. Md. Quamruddin Khan, Mr. Sankar Paul ...for the petitioner The facts of the present case are rather peculiar. The petitioner obtained an eviction decree against the judgment- debtors/opposite parties and levied execution by way of Ejectment Execution Case No. 86 of 2013. Meanwhile, the opposite parties preferred an appeal against the eviction decree and took out an application for stay of execution of eviction decree in connection with the said appeal. Initially, such prayer for stay was refused by the appellate court, which was challenged by the judgment-debtors in revision before this Court, thereby giving rise to C.O. No. 131 of 2014. A co-ordinate bench of this Court, by order dated March 03, 2014 allowed the said revisional application, granting stay of the execution proceeding till disposal of the title appeal, subject to payment of all arrear occupation charges and current rent regularly by the judgment-debtors. Thereafter, a dispute arose as to the quantum of the occupation charges payable in terms of the order dated March 03, 2014. An application was taken out by the petitioner with a prayer to direct the judgment-debtors to pay Rs.66,675/- per month as damages/mesne profits. On the other hand, the judgment-debtors/opposite parties filed an application for permission to deposit arrears rent for the months of June, 2013 to March, 2014 at the rate of Rs.80/- per month, along with current rent. The appellate court, vide Order No. 14 dated May 05, 2014, refused the prayer of the present petitioner, but allowed the application of the judgment-debtors/opposite parties by permitting the opposite parties to deposit arrears of rent and current rent at the rate of Rs.80/- per month.
Being aggrieved with such order dated May 05, 2014, the present petitioner preferred a civil revision, bearing C.O. 1993 of 2014, along with an application for review of the order of this Court dated March 03, 2014, giving rise to R.V.W. 171 of 2014. Such subsequent revisional application and review petition were disposed of together by an order dated September 16, 2016, whereby the same co-ordinate bench of this Court clarified that the appellate court was to revisit the arrear occupation charges and current rent strictly in the light of the law laid down in Re:
Atma Ram properties (P) Ltd., thereby further clarifying that such was the expression of intent in the order dated March 03, 2015.
It is submitted on behalf of the present petitioner that subsequently there has been no re-assessment of the occupation charges payable by the judgment-debtors by the appellate court.
Thereafter, the present petitioner prayed that the executing court may proceed with Miscellaneous Case No. 2 of 2014, which was an application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure in connection with the execution case, in view of no stay order subsisting, since the opposite parties were not paying any occupation charges at the current market rate.
By virtue of the impugned order dated May 02, 2018, the executing court held that, it found no order for vacating the order of stay initially passed by this court and, as such, did not proceed with the execution case or the miscellaneous case.
Upon hearing learned counsel for the petitioner and going through the materials on record, it is evident that the reasons assigned by the executing court for passing the impugned order was not correct. In view of disposal of C.O. No. 1993 of 2014, there could be no doubt that the interim stay granted by this court already stood vacated. However, in view of the appellate court having till date not re-assessed the occupation charges payable by the judgment-debtors/opposite parties, it is not possible for the judgment-debtors/opposite parties to be sure as to what amount of occupation charges the judgment-debtors have to pay monthly. Since the assessment of occupation charges is at present in limbo, the judgment-debtors could not strictly be faulted for not paying any occupation charges. Although the situation has given an unfair advantage to the judgment-debtors, insofar as the previous order of payment at the last rate of rent paid is set aside and is no longer in existence, while, on the other hand, no new assessment has been made at the market rate at which occupation charges is now to be paid. In such premise, it would be appropriate if the decree-holder/petitioner approaches the appellate court immediately for completing the re-assessment of occupation charges at the market rate in terms of the direction given by this Court in C.O. No. 1993 of 2014 (with R.V.W. 171 of 2014) by its order dated September16, 2016. In the absence of such re- assessment, the anomaly of the situation, in so far as the stay being prevalent without any quantification of occupation charges, has to continue. As such, although the reason given in the impugned order might not be sound, the conclusion, that the execution case or the connected miscellaneous case could not be proceeded with, could not be faulted, since the stay order cannot be vacated for non-payment of an unquantified quantum of occupation charges. It is no doubt true that whenever the appellate court would assess the occupation charges, such assessment would operate retrospectively, in the sense that the judgment-debtors will also have to pay arrears occupation charges from the date of the eviction decree. But till then, the opposite parties will enjoy the stay of execution without having to pay any occupation charges.
To obviate such situation, the petitioner is permitted to approach the appellate court with a proper prayer for re- assessment of occupation charges in terms of the order dated September 16, 2016 passed by this Court in C.O. No. 1993 of 2014 (with R.V.W. 171 of 2014). If so approached, the appellate court is requested to re-assess the occupation charges as expeditiously as possible, preferably within a fortnight from the date of making such prayer, upon hearing both sides.
Accordingly, C.O. No. 1499 of 2018 is disposed of without interfering with the impugned order but in the light of the observations made hereinabove.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)