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Challenging the said judgment and decree passed by the learned lower Appellate Court the appellant has preferred the instant appeal.

The instant appeal has been admitted by an Hon'ble Division Bench of this Court by order dated 29th April, 2011. It appears that the present application for stay of all further proceedings in the ejectment execution case concerned was moved and the said Hon'ble Division Bench by the said order dated 29th April, 2011 was pleased to give directions for filing of affidavit-in- opposition and affidavit-in-reply. As it appears that the learned Advocate for the respondents had appeared before the Court on the said day and the Office was directed to incorporate the caveat in the records of the case. The Hon'ble Division Bench by the said order dated 29.4.2011 was pleased to direct that the application for stay should come up for hearing before the appropriate Bench and the said Hon'ble Court was pleased to grant stay of further proceedings in the ejectment execution case No.9 of 2009 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24- Paraganas, during the pendency of the application. Their Lordships were pleased to clarify that the pendency of the appeal shall not prevent the learned Trial Judge from proceeding with the mesne profits-proceedings, but the said learned Trial Judge shall not pass the final order without the leave of this Court.

It appears from the submissions made by the learned Advocates for the respective parties that two Special Leave Petitions were filed before the Hon'ble Supreme Court of India. One of such Special Leave Petitions arose out of the order by which the said Hon'ble Division Bench of this Court was pleased to admit the appeal for hearing (petition for Special Leave to appeal (Civil) No. 25948 of 2011). The other Special Leave Petition arose out of the order by which the Hon'ble Division Bench of this Court was pleased to grant an unconditional interim order of stay of all further proceedings in the aforesaid ejectment execution case during the pendency of the present application for stay. The Hon'ble Supreme Court by order dated 17.10.2011 was pleased to pass the following order:

The said learned Advocate also cited another decision reported at 2010(4) CHN(CAL) 108 (Pratul Saha & Ors. -V- Purnabrata Dutta) in support of his contention that if the appellant is permitted to enjoy an order of stay in that event the appellant should be directed to pay occupation charges, arrear and current, at the present market rate in respect of the suit property concerned.

The learned Advocate for the appellant submitted that even though a prayer was made on behalf of the respondents before the Hon'ble High Court when the appeal was admitted for hearing that the appellant should be put on terms if an interim order of stay of execution of the eviction decree is passed, it was refused by the said Hon'ble Court, and, according to the said learned Advocate, the said order of refusal to impose any terms as a condition for grant of stay has merged with the order passed by the Hon'ble Supreme Court while dismissing the Special Leave Petitions, as aforesaid. It appears that the Hon'ble Supreme Court while dismissing the aforesaid Special Leave Petitions on 17.10.2011 was pleased to pass the order as already quoted above. The learned Advocate for the appellant submitted that the doctrine of merger applies in the instant case and the Hon'ble Supreme Court gave reasons while dismissing the Special Leave Petitions. The said learned Advocate referred to copy of the Special Leave Petition and the list of dates submitted before the Hon'ble Supreme Court while submitting that the report of M/s. Talbot Co., as aforesaid, was also placed before the Hon'ble Supreme Court and a grievance was expressed before the Hon'ble Supreme Court that the Hon'ble Division Bench of this High Court had granted an unconditional order of stay of all further proceedings in the ejectment execution case concerned. The said learned Advocate submitted that the Hon'ble Supreme Court was pleased to refuse to interfere with the said order of the Hon'ble High Court and the doctrine of merger applies in the instant case.

(3) The appellant shall deposit the decretal costs, if any, before the aforesaid learned Executing Court concerned within four weeks from this date.
(4) The appellant shall prepare the requisite number of paper books out of Court and file the same in the Department concerned within four weeks from the date of receipt of notice of arrival of the lower Court records.

In default of compliance of any of the conditions mentioned above on the part of the appellant the instant order stay shall stand vacated and the respondents will be entitled in that event to proceed with the aforesaid ejectment execution case.