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1. Petitioner herein has challenged the impugned order dated 19th July, 2024 passed by learned Small Causes Court, 4th Bench, Calcutta in Misc. Case No. 196 of 2023, arising out of Ejectment Execution case no. 19 of 2023.

2. By the order impugned learned Court below directed that all further proceedings of Ejectment Execution Case no. 19 of 2023 shall be stayed till 2025:CHC-AS:1856 disposal of the said Misc. Case being No..196 of 2023 filed under the provision of order XXI CPC on condition that the petitioner shall pay the occupational charges at the rate of 9,000/- per month. w.e.f. the date of the decree.

5. The respondent opposite party no. 1 and 2 and one Sk quasim, since deceased, filed an ejectment suit being no. 113 of 2015 against tenant Bagbul Haque for recovery of possession and mesne profit before 4th Bench, 2025:CHC-AS:1856 which was decreed ex parte on 22.12.2022. The opposite party /decree holder No. 1& 2 and deceased Sk. quasim filed an application for Execution of decree being aforesaid execution no. 19 of 2023. The opposite party no. 1 and 2 and deceased Sk. Quasim also filed another suit being no. TS 1273 of 2021 before the learned 9th Bench, City Civil Court, Calcutta for declaration in regard to the acquirement of validity of title of the petitioner and for permanent injunction against the petitioner herein which is pending for adjudication. Petitioner's contention is that no intimation about such execution proceeding was given to them and the petitioner on 03.10.2023 came to know that behind the back of the petitioner an execution case has been filed. He at once made contact with his lawyer and under his instruction proforma respondent no. 3 and 4 herein filed an application before the Bench on 15.12.2023 under section 151 152 read with order 21 rule 97 98 99 101 103 and 105 of the Code being aforesaid Misc. Case no. 196 2023, in the Ejectment execution case no. 19 of 2023.

6. Petitioners specific case is that petitioner and respondent no. 3 had independent right title interest over the decretal property by virtue of aforesaid deeds and accordingly they filed the aforesaid Misc. case no. 196 of 2023 in the Ejectment Execution case no. 19 of 2023 and as such the petitioner cannot be evicted without due process of law. Moreover opposite parties herein filed a suit being TS. 1273 of 2021 challenging the title of the petitioner which is pending before 9th Bench city civil court Calcutta, wherein also the validity of the deeds is subject matter for consideration.

8. Mr. Rahul Karmakar learned Counsel appearing on behalf of the opposite party submits that said Ejectment suit being no. 113 of 2015 was filed by the opposite party no. 1 and 2 herein against one Bagbul Haque, who appeared in the said suit but did not contest the same thereafter for non compliance of section 7(1), his defence was struck off under section 7(3) of the W.BPT. 1997. Ld. Trial court decreed the suit on 22nd December, 2022 directing the defendant to vacate the decretal premises within two months. Since the defendant failed to vacate the premise in terms of the 2025:CHC-AS:1856 order of the court, the Opposite Party herein put the decree into execution being aforesaid ejectment execution case no. 19 of 2023. When the court bailiff went to execute the decree, it was resisted and at this juncture the petitioner herein along with Opposite Party No. 3 and 4 filed aforesaid application under order 21 of the CPC. In the said Misc. Case filed by the petitioner a stay application was also pressed wherein the stay was granted by the Court below by the impugned order subject to payment of occupational charges. In this context Mr. Karmakar submits that there is no specific provisions under order 21, rule 97 to 101 in the Code which permits an executing court to stay execution proceeding or any proceeding arising out of the decree. It is only by virtue of section 151 of the Code that such powers are exercised under the discretion of the court. Therefore such prayer for stay is guided by the principle of order XLI Rule 5 CPC and in order to avail stay of the execution proceeding, the objector is required to pay occupational charges as settled by this court in (2000) 3 CLT 132 and 2016 (3) CLT 428