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013. C.O. 2573 of 2011 C.O. 521 of 2012 Mr. Swapan Mallick, Mr. Sakya Sen, Ms. Nilanjana Adhya.

....For the petitioner.

Mr. Asis Kr. Bagchi..

....For the O.P. These two applications are taken up together for analogous hearing, though two arose out of two different orders.

The petitioner of these two applications filed suit for eviction against O.P. tenant being Ejectment Suit No.82/2004-E on various grounds. A judgment and decree dated 21st May, 2008 was passed by the ld. trial court allowing eviction on the ground of building and rebuilding with certain conditions stipulated therein. The defendant tenant preferred an appeal. As per the then law the appeal was taken up for hearing by the tribunal. There was an order of limited remand to the ld. trial court to take evidence on certain points and to return the evidence and findings relating to two applications to the appeal court for final disposal of the appeal. Later on law changed and District Judge became the appellate forum. The O.P. filed an application for stay of ejectment execution case no.115/2008 arising out of said judgment and decree passed in ejectment suit no.82/2004-E. The petitioner landlord also filed an application praying for directing tenant to pay occupational charges as a condition of stay. By order no.5 dated 19th January, 2007 passed in title appeal no.69/2001 ld. Chief Judge City Civil Court though allowed stay of execution of said decree but declined to pass any direction upon the tenant for depositing occupational charges at the market rent on the ground that the matter was pending before trial court for adjudication on some points and that at that stage there was no scope of execution of the decree and as such there was no question of passing any order of payment of occupational charges at the market rent. Being aggrieved with said order, the plaintiff landlord has filed this application being C.O. 2573/2011 praying for setting aside said order so far as it relates to rejection of payment of occupational charges at the market rent.