Calcutta High Court (Appellete Side)
Satyanaryan Mali & Ors vs Ashoke Kumar Mali & Ors on 23 April, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side Present:-
The Hon'ble Justice Subhasis Dasgupta.
CO. No. 2862 of 2018 Satyanaryan Mali & Ors.
Vs. Ashoke Kumar Mali & Ors.
For the petitioner : Mr. Tarak Nath Haldar, Adv. For the opposite party no.1 : Mr. Sibnath Ganguly, Adv. Judgment : 23.04.2019 Subhasis Dasgupta, J:-
The impugned order dated 17th February, 2018 and 20th May, 2017, both passed by the learned Civil Judge (Junior Division), Fourth Court at Sealdah, District - North 24-Parganas in Ejectment Execution Case No. 2 of 2016 allowing petition under Section 151 read with Section 152 CPC with a direction upon judgment debtor to deposit security of Rs.5000/- within two weeks from the date of the order is the subject matter of challenge in this revisional application.
It was contended by the petitioner/revisionist that the Court below without understanding the real purport of the petition dated 04.09.2017, taken out by the decree holder/petitioner, in its real perspective proceeded to dispose of the same with a direction upon the opposite party/JDR to deposit security of Rs.5000/- without granting the occupational charges in respect of the premises under possession of JDR. The argument was raised further that the provision available to Appellate Court in exercise of the power under Order 41 Rule 5 Sub- Clause 3 may also be permitted to be exercised by the Executing Court, otherwise the decree holder would not be able to enjoy the fruits of the decree during his life time for the delatory tactics being adopted by the party putting resistance to the execution of decree. The Executing Court thus acted without jurisdiction in not applying the principle governing the grant of stay, ordinarily exercisable by the Appellate Court under Order 41 Rule 5 of the Code, and the Executing Court invoking the same principle could have imposed occupational charges against the judgment debtor as a condition for grant of stay.
Learned advocate for the opposite party/JDR/defendant submitted controverting the submission raised by the decree holder/petitioner that the Court below committed no illegality in disposing of the petition under Section 151 CPC filed by the revisionist seeking security deposit in a case where an ex parte decree was passed against the JDR/opposite party, to which the JDR/opposite party felt aggrieved and had already taken out an application under Section 47 CPC, which was registered as Misc. Case and the stay of the execution proceeding had already been granted by the Executing Court. According to OP/JDR since there was no order regarding deposit of occupational charges, while granting stay order by the Executing Court in connection with a proceeding under Section 47 CPC, the order granting stay of the execution proceeding could not be modified with imposition of occupational charges by filing a petition under Section 151 CPC.
The point requires to be addressed by this Court is whether the stay order was granted by the Executing Court in connection with a proceeding under Section 47 CPC imposing any condition, the fulfillment of which makes the stay order continued for further period of time or not.
The decree holders filed a suit for eviction against the petitioner/judgment debtor under Section 6 of the WBPT Act of 1997, which was disposed of ex parte on the ground that the OP/judgment debtor though appeared in the suit, but subsequently neither did deposit the rent, nor contested the same. The petitioner/decree holder proceeded to put the decree into execution by taking out a title execution case vide No.2 of 2016. The OP/judgment debtor filed a petition under Section 47 CPC which was registered as Misc. Case NO. 14 of 2017 challenging maintainability of the ex parte decree, passed against him in Ejectment Suit No. 45 of 2016. The Executing Court to minimize the chance of multiplicity of proceedings proceeded to grant stay of execution proceeding till the disposal of the Misc. Case No. 14 of 2017.
The prayer for imposition of occupational charges as a condition for grant of stay was not even urged by the petitioner/decree holder before the Executing Court after adhering to the principle available to Appellate Court under Order 41 Rule 5 CPC while granting stay order, though preferred to resist the stay application in a manner, as chosen by the petitioner/decree holder.
Subsequently, the decree holder after the disposal of the stay petition by the Executing Court, an independent petition was taken out by the decree holder on 04.09.2017 under Section 151 read with Section 152 CPC praying for direction upon the judgment debtor to deposit the security money (occupational charges) month by month in favour of the decree holder according to market value of the suit property for the ends of justice with costs.
Upon perusal of the impugned orders dated 20.05.2017 granting stay by the Executing Court and order dated 17.02.2018 allowing the petition of the decree holder under Section 151 read with Section 152 CPC with a direction upon JDR/OP to deposit of Rs.5000/- as security amount within two weeks, it appears that the stay of the execution was passed without imposition of any condition. Therefore, in the absence of any condition being imposed while granting stay, it does not stand to reasons that the grant of stay was a conditional.
In the petition dated 04.09.2017 the decree holders/petitioner prayed for a direction upon the judgment debtor to pay the security money (occupational charges) month by month in favour of the decree holder according to the present market value of the suit property. The undenying position is that effects of the stay resultantly caused stalling of the execution proceeding, already initiated against the judgment debtor. The appellate provisions though may not be strictly applicable to a proceeding under Section 47 CPC, but the principle incorporated under Order 41 Rule 5(3), ordinarily exercisable by the Appellate Court, may be adhered to the extent possible in imposing occupational charges against the judgment debtor as a condition for grant of stay. The Court below simply proceeded to allow the petition of the decree holder with a direction upon the judgment debtor to deposit Rs.5000/- as security without addressing the issue pertaining to imposition of occupational charges.
There are reasons for addressing the issue in the manner as already decided. Deposition of security is ordinarily given by the Appellate Court in a case for the due performance of decree or order as may ultimately be binding upon the parties. The concept of imposition of occupational charges is something different than awarding security deposit. The occupation charge has its different connotation, purport and significance as well. Though the principle may be borrowed, available under Order 41 Rule 5(3) CPC for making consideration of imposition of occupational charges, but to address the issue, the prayer should have been made in a clear and by express words, without any ambiguity therein. From the petition filed by the decree holder, it appears that the decree holder proposed for security money (occupational charges) month by month creating a great confusion on the part of the Executing Court to address the issue involved in the prayer portion. The prayer contained in the petition dated 04.09.17, taken out by the decree holder/petitioner, not being in unambiguous terms, the Executing Court proceeded to dispose of the same directing the judgment debtor to deposit security of Rs.5000/- within two weeks from the date of this order, what could not be granted at the time of passing stay of the execution proceeding.
Since the application filed by the decree holder has already been disposed of in the manner as discussed above, the Court is of the view that the same should not be reopened any more, because that will invite further complication in the pending execution proceeding. The security deposit of Rs.5000/- though granted by the Executing Court, but the same appears to have not been quantified adequately and appropriately upon consideration of the harassment and prejudice already suffered by the decree holder by reason of the stay of execution being granted in this case. It is an eviction suit in which the ex parte decree has not been challenged in terms of the provisions contained in the Code of Civil Procedure. But the judgment debtor/defendant had chosen to resist the execution by filing a petition under Section 47 CPC in order to challenge the maintainability of the execution proceeding initiated by the decree holder. Upon consideration of the rival submission of the parties, and particularly keeping in view the harassment/prejudice already suffered by the decree holder by reasons of the execution proceeding being halted, it appears that the amount of security deposit, as already ordered by the Executing Court, appears to be not sufficient enough to appropriately address the issue involved in the case. The impugned order dated 17.02.2018 thus needs little modification to the extent mentioned herein below:-
The amount of Security deposit, granted in the order dated 17.02.018 be modified from Rs.5000/- to 10,000/- to be deposited by the JDR, within fortnight from the date of communication of the order to the Court below. It is given to understand that security deposit of Rs.5000/- had already been deposited and in that event balance amount may be deposited by JDR within the period, as stipulated hereinabove.
Learned Executing Court is directed to dispose of the Misc. Case No. 14 of 2017 expeditiously as possible by taking out a sincerest effort for the purpose without granting any unnecessary adjournment, unless it is unavoidable giving sufficient opportunity of hearing to either of the parties involved in this case.
Liberty is given to petitioner to reagitate the issue pertaining to imposition the occupational charges at the time of disposal of application under Section 47 CPC, and if any such point is raised, the same shall be duly addressed to by the Executing Court in accordance with law.
The petitioner is directed to communicate this order upon the Executing Court for necessary compliance.
With this observation and direction, the revisional application stands disposed of.
Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)