Zubaida Hamid vs Sunil Shaw
2023 Latest Caselaw 5441 Cal

23.08.2023

Item No.20 CP C.O. 2693 of 2023 Zubaida Hamid Vs.

Sunil Shaw

Mr. Aniruddha Chatterjee Mr. Wasim Ahmed Mr. Md. Kashif ...for the petitioner.

Mr. Asoke Banerjee, Sr. Advocate Mr. Sudhakar Thakur Mr. Tapas Mondal Mr. Mritunjoy Saha

....for the opposite party.

This revisional application has been filed

challenging an order dated August 3, 2023, passed

by the Additional District Judge, 10th Court at

Alipore in Misc. Appeal No. 30 of 2023. The said

misc. appeal arose out of an order dated January 18,

2023 passed in Misc. Case No. 208 of 2017. Misc.

Case No. 208 of 2017 arose out of Ejectment

Execution Case No. 10 of 2016.

By the order impugned, the learned court

below held as follows:

"That the misc. appeal 30 of 2023 is allowed on contest but without any order as to costs.

The impugned order passed by the ld. Executing Court on 18.01.2023 in misc. case no. 208 of 2017 is set aside.

The ld. Executing court shall analogously hear and dispose of by a common order Misc.

Case 208 of 2017 and misc. case 81 of 2019

within one month from the date of receiving the case records.

The LCR along with a copy of this judgment is to be sent back to the lad. Executing court (ld. 2nd court of Civil Judge (Jr. Div) Alipore forthwith. Parties are directed to appear before the ld. Executing court on 05.08.2023 for necessary instructions/settling of dates for hearing."

Mr. Chatterjee, learned Advocate for the

petitioner/decree holder submits that as no direction

was issued upon the opposite party to make payment

of the occupational charges, despite direction of this

Hon'ble Court in CO 1192 of 2023, the order

impugned ought to be set aside.

The premises in question is premises No.

B/168/A/H/1, Tiljala Road. The defendants were

directed to hand over vacant and khas possession of

the suit property as described in the schedule of the

plaint in favour of the petitioner. The decree was put

into execution. Such decree was challenged in

Ejectment Appeal No. 78 of 2016. The Ejectment

Appeal No. 78 of 2016 has since been dismissed.

Zubaida Hamid, the petitioner herein, obtained

an eviction decree against Ramlal and others in

respect of a separate premises. It is a matter of

record that the judgment and decree in the eviction

suit was challenged by Rashida as the constituted

attorney of Ramlal and others (judgment debtors).

During the pendency of the ejectment appeal a stay

was granted in favour of Rashida on the condition

that occupational charges of Rs.50,000/- per month

should be paid to the decree holder.

The opposite party, one Mr. Sunil Shaw filed

an application under Order 21 Rules 98 to 101 of the

Code of Civil Procedure before the learned executing

court. The said application was registered as Misc.

Case No. 81 of 2019. In the said application, the

opposite party claimed that he was a tenant under

one Rashida Hamid. He was running a leather

business from the said premises upon obtaining a

trade licence from the Kolkata Municipal Corporation

and electricity connection from the CESC authorities.

Rashida was the owner in respect of premises

No.168A Tiljala Road and the decree was being

wrongfully sought to be executed in respect of the

said premises.

The opposite party prayed for stay of the

execution case, during the pendency of Misc. Case

No. 81 of 2019 by filing an application under Section

151 of the Code of Civil Procedure. While deciding

the application for stay, the learned executing court

in the order dated September 22, 2022 observed that

Sunil Shaw claimed to be a tenant under Rashida

Hamid, the constituted attorney of some of the

judgment debtors. He was residing at and also using

the decretal premises. Hence, Rs.50,000/- per month

should be paid as occupational charges. Sunil Shaw

had the obligation to pay the occupational charges,

being in occupation of the premises in respect of

which a decree of eviction was passed.

The learned executing court recorded that

Ramlal handed over the tenancy to Rashida and

Rashida accordingly inducted Sunil Shaw. It was

thus, directed that the amount of Rs.50,000/- be

paid within 15th of every succeeding month till the

opposite party continued in possession of the

decretal property. The arrear occupational charges

from May 28, 2019 was directed to be paid within

four months from the date of the order. Such order

was passed on September 22, 2022. It was also

directed that in case of default in payment of the

occupational charges, the stay order would

automatically stand vacated and the execution case

would proceed.

As the opposite party failed to pay the amount

as directed by the court in the order dated September

22, 2022, the petitioner prayed that the execution

may proceed. The execution proceeded and the

petitioner filed an application for execution of the

decree through police help. The said application

under Order 21 Rule 97 of the Code of Civil

Procedure was was registered as Misc. Case No. 208

of 2017. By an order dated January 18, 2023, the

Misc. Case No. 208 of 2017 was allowed. The order

for police help was granted.

The opposite party preferred an appeal being

Misc. Case No. 30 of 2023. The appeal was admitted

by the learned Additional District Judge, 14th Court

at Alipore and the operation of the order of execution

through police help was stayed by an order dated

March 22, 2023, without any condition.

Such order was under challenge before this

court in C.O. 1192 of 2023, on the ground that

without payment of the occupational charges, the

execution could not be stayed.

This court, upon hearing the parties and upon

considering the factual background and the orders

passed in the several proceedings, was of the view

that the learned Additional District Judge, 14th Court

at Alipore could not have stayed the order of

execution through police help, without directing

payment as per the order of the learned executing

court. The order of the executing court had not been

set aside by any superior court. The impugned order

dated March 22, 2023, was set aside and this court

directed as follows:

"The order dated September 22, 2022 directing payment of occupational charges as a pre-condition for stay of the execution proceeding, has neither been set aside nor stayed by any competent court and has attained finality. The merits of the said order is not under challenge before this court and this

court cannot reappreciate the evidence or the contentions of the opposite party which would amount to deciding Misc Case No.81 of 2019.

The execution of the decree through police help shall remain stayed provided the opposite party pays Rs.50,000/-, month by month, within 15th of every month and the arrears on and from the date of the application, i.e. May 28, 2019 till May 2023 are paid in six equal monthly instalments.

First of such instalments shall be paid along with the occupational charges for the month of June, 2023, within June 20, 2023. Thereafter, on and from July, 2023 the occupational charges shall be paid along with the instalments. The payment of occupational charges shall be made till the petitioner is in possession of the decretal property or until further orders that may be passed in the execution proceedings or by any competent court.

The stay application, pending before the learned Additional District Judge, 14th Court at Alipore in Misc. Appeal No.30 of 2023, is accordingly disposed of. The hearing of the appeal must be expedited.

As the opposite party prays that the Misc appeal be disposed of within a month from date, the same shall be disposed of in accordance with law within the aforementioned period. The Misc appeal shall proceed on other points and not on the issue decided by this court.

In case of default, the petitioner can proceed with the execution strictly in accordance with law and subject to any orders that may be passed by any competent court or by the executing court in any proceeding.

It is informed to the Court that the order dated September 22, 2022 has been challenged by the opposite party by way of a revision before the learned District Judge. There are no records in support of such contention. This Court directs that if any revisional application has been filed and the same is entertained and allowed by holding that the petitioner was not required to pay Rs.50,000/-, the amount paid as per direction of this court shall be refunded to the opposite party by the petitioner, before the petitioner can proceed with the execution."

The above order was challenged by the

opposite party, before the Hon'ble Supreme Court by

filing a Special Leave Petition. By an order dated

July 21, 2023, the Special Leave Petition was

dismissed.

Thus, the direction of this court as quoted

hereinabove, had attained finality. The Misc. Appeal

was directed to be disposed of by this court, within a

month. Accordingly the Misc. Appeal was disposed of

by the order impugned.

Mr. Chatterjee, learned advocate for the decree

holder, submits that the learned lower appellate

court, by not directing payment of occupational

charges and in allowing the Misc Appeal, sat in

appeal over the decision of this court, which was also

affirmed by the Hon'ble Supreme Court. The

execution of the decree through police help should

continue, in view of the failure of Sunil Shaw to pay

the occupational charges including arrears as

directed by this court in C.O. 1192 of 2023.

This court is of the opinion that the direction of

the learned court below that the Misc. Case No. 81 of

2019 and Misc Case No.208 of 2017 should be

disposed of within a month, is not erroneous per se.

The right of the third party has to be adjudicated by

executing court. However, the learned lower appellate

court erred in not directing payment of occupational

charges, as decided in C.O. 1192 of 2023. The order

passed in Misc Case No.208 of 2017 granting police

help was set aside without any condition. This court

directed that the Misc Appeal No.30 of 2023 should

be disposed of on other points and not on the issue

of payment of occupational charges for the purpose

of stay of execution. Such issue was finally decided

by this Court. Execution would remain stayed

subject to payment, was the clear and unequivocal

verdict of this court. Hence, setting aside the order

dated January 18, 2023 and directing the learned

executing court to decide both the Misc cases

analogously within a month, amounts to stay of the

execution.

Hence, the learned lower appellate court, by

remaining silent with regard to payment of

occupational charges as directed by the High Court

and affirmed by the Hon'ble Supreme Court, while

setting aside the order allowing the application under

Order 21 Rule 97 of the Code of Civil Procedure,

proceeded with material irregularity.

The order impugned is set aside. Sunil Shaw

would be bound to comply with the order dated June

5, 2023 passed in C.O. 1192 of 2023. However, the

payment schedule is required to be re-arranged. The

order dated January 18, 2023 passed in Misc. Case

No. 208 of 2017, will remain inoperative till Misc.

Case No. 81 of 2019 is disposed of in accordance

with law, preferably within four months from the

date of communication of this order. Current

occupational charges at the rate of Rs.50,000/- from

August 2023 shall be paid within September 15,

2023 and thereafter month by month within 15th of

every succeeding month shall be paid by demand

draft in favour of the petitioner/decree holder. The

arrears from May 28, 2019 till July 2023, shall be

paid in four equal monthly instalments. First of such

instalment shall be paid with the current

occupational charges for August 2023 within

September 15, 2023. Fraction if any shall be added

to the last instalment. On the outcome of Misc. Case

No. 81 of 2019, the fate of Misc. Case No.208 of 2017

will be decided.

In case of default in payment of occupational

charges as directed hereinabove, execution through

police help, shall be allowed.

The revisional application is accordingly

disposed of.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)