Smt. Reeta Paul vs Sri Pannalal Bhattacharjee & Anr
2021 Latest Caselaw 5834 Cal

   63
 sandip
 Ct. 18
25.11.2021

C.O. No. 1444 of 2021 (Via Video Conference)

Smt. Reeta Paul Vs.

Sri Pannalal Bhattacharjee & Anr.

Mrs. Sohini Chakrabarty, Ms. Prajaaini Das ... For the petitioner.

Mr. Gopal Chandra Ghosh... For the opposite parties.

The opposite parties have suffered a decree of

eviction in Title Suit No. 312 of 2015; aggrieved by the

said decree, they have preferred the connected Title

Appeal No. 40 of 2020 which is pending before the

learned District Judge, District - 24 Parganas (South)

at Alipore.

The appeal Court below by the order impugned

being Order No. 11 dated February 10, 2021 has fixed

occupation charge @ Rs. 12,000/- per month with

effect from the date of the said order as the condition

for stay of the Execution case levied to execute the

decree under appeal.

Mrs. Chakraborty, learned counsel appearing on

behalf of the petitioner submits that the grievance of

the petitioner is two-fold, firstly, the quantum of

occupation charge is disproportionate with the market

value of the suit shop-room and secondly, the

occupation charge has been directed to be paid from

the date of the order impugned instead from the date

of the decree.

Mr. Gopal Chandra Ghosh, learned senior counsel

appearing on behalf of the opposite parties submits

that the occupation charge fixed by the order

impugned is much higher than the rent which the suit

shop-room can fetch, nonetheless his clients would

manage to pay it but enhancement of the said amount

shall cause severe hardships to them.

Having heard the learned counsel for the parties

and on perusal of the record, it appears that the suit

shop room is situated on Diamond Harbour Road, a

prime location of the city of Kolkata. The valuation

report submitted by the petitioner in the said appeal

for assessment of the occupation charge suggests that

the rate of occupation charge fixed by the order

impugned is at the lower side. However, considering

the rate of rent of the said shop room was Rs. 300/-

per month, the rate of occupation charge is enhanced

to Rs. 15,000/- per month payable from the date of

the decree.

The judgment-debtors are required to pay the said

occupation charge to the decree-holder within 7 th of

each succeeding month for which it falls due.

The arrear occupation charge is required to be

cleared by four equal monthly installments

commencing from January 2022 along with the

current occupation charge.

There shall be unconditional stay of all further

proceedings of the Title Execution Case no. 7 of 2020

pending before the 7th Court of learned Civil

Judge(Senior Division), Alipore, District- 24 Parganas

(South) till the end of the month of December, 2021.

In the event the aforesaid payments are made in

terms of this order, the stay hereby granted shall

continue till the disposal of the Title Appeal No. 40 of

2020.

But in the event of a single default in paying the

occupation charge and/or in the payment of

installment of arrear occupation charge, the stay

hereby granted shall be automatically vacated and the

decree would be executable at once.

If the appeal is allowed, the petitioner shall refund

the occupation charge to the opposite parties received

by her in terms of this order.

The appeal Court below is requested to expedite the

disposal of the said appeal in accordance with law.

C.O. 1444 of 2021 is disposed of with the above

terms without any 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.)