Calcutta High Court (Appellete Side)
Shibu Kumar Shaw & Ors vs Naresh Sharma on 6 January, 2021
20
SK
Ct. No. 18
06.01.2021
C.O. No. 1011 of 2020
(Via Video Conference)
Shibu Kumar Shaw & Ors.
Vs.
Naresh Sharma
Mr. Sharanya Chatterjee,
Mr. Neil Basu ... For the petitioners.
The revisional application is taken up for hearing.
Affidavit of service filed in Court today be kept with
the record.
None appears either virtually or physically to
oppose the application in spite of service.
The petitioners being the plaintiffs of Title Suit No.
382 of 1996 were successful in obtaining a decree of
eviction against their tenant, namely Jogeswar
Sharma.
The said decree was put into execution giving rise
to Title Execution Case No. 4 of 1997 before the 3 rd
Court of learned Civil Judge, (Junior Division), at
Alipore, District 24 Parganas (South).
The opposite party in the said execution case filed
an application inviting the executing Court to
determine his alleged independent right, title and
interest over the suit property under Rule 101 of
Order XXI of the Code of Civil Procedure which has
been registered before the executing Court as Misc.
Case No. 35 of 2006.
The pendency of the said misc. case since is
arresting the progress of the connected execution case
the petitioners in the said miscellaneous case filed an
application for occupational charges.
The executing Court by the order impugned has
dismissed the said application holding that the
opposite party not being a tenant is under no
obligation to pay occupational charges.
Apart from tenant the execution of a decree of
recovery of possession of immovable property can be
resisted by a person claiming his alleged independent
right, title and interest over the decretal property. The
said person pending adjudication of his such right is
primarily liable to pay charges to retain his occupation
over the said property.
The liability of payment of charge in lieu of such
occupation ofcourse depends upon the prima facie
gravity of the right sought to be established.
It is therefore preposterous to suggest that liability
to pay occupational charges is attached only with a
judgment-debtor/tenant.
The executing Court, therefore, has dismissed the
application filed by the petitioners for occupational
charges on an erroneous premise.
The order impugned for the above reason is not
sustainable and is accordingly set aside. The
executing Court is directed to decide the application
filed by the petitioners for fixation of the occupational
charges afresh in accordance with law.
The executing Court is requested to dispose of the
said application expeditiously preferably within a
period of six weeks from the date of communication of
this order and to adhere to the time limit fixed by this
Court for disposal of the said application shall not
entertain prayer of either of the parties for any
unnecessary adjournment.
The misc. case is pending since 2006, the executing
Court is therefore further requested to make all
endeavour to dispose of the said misc. case
expeditiously.
C.O. 1011 of 2020 is allowed with the above terms.
No order as to costs.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties subject to
compliance with all requisite formalities.
(Biswajit Basu, J.)
