Zubaida Hamid vs Sunil Shaw
2023 Latest Caselaw 3634 Cal

05.06.2023 Sl. No.17(ML) srm/CP/GB

C.O. No. 1192 of 2023 With CAN 1 of 2023 With CAN 2 of 2023 Zubaida Hamid Vs.

Sunil Shaw

Mr. Aniruddha Chatterjee, Mr. Wasim Ahmed, Mr. Md. Kashif ...for the Petitioner.

Mr. Tapas Kumar Mandal, Mr. Mritunjay Saha ...for the Opposite Party.

Mr. Uday Sankar Bhattacharyya ...for the Applicant in CAN 1 of 2023.

The petitioner is the decree-holder in an ejectment

suit, being Ejectment Suit No.10 of 2016. The premises

in question is Premises No.B/168/A/H/1, Tiljala Road,

Kolkata-700046. The decree was passed on contest and

the defendants were directed to handover vacant and

khas possession of the suit property as described in the

schedule of the plaint in favour of the plaintiff, within

sixty day from the date of passing of the judgment.

The schedule of the plaint is quoted below:

"SCHEDULE ABOVE REFERRED TO

All That tiled roof structure and tannery at premises No.B/168/A/H/1, Tiljala Road, Kolkata- 700046 butted and bounded in the manner as follows:

On the East : By the Tannery of Chatter Ram; On the West : By a drain thereafter common passage;

On the North : By common passage;

On the South : By the Tannery of Asha Ram & Dhanu Ram."

The tenancy as per the plaint was in respect of one

tiled roof structure and tannery.

Challenging the aforementioned decree, the

defendants/judgment-debtors preferred an appeal being

Ejectment Appeal No.78 of 2016.

The opposite party, alleging that the decree-

holders were attempting to execute the decree against

Premises No.168A, Tiljala Road, Kolkata-700046, filed

an application under Order XXI Rules 98 to 101 of the

Code of Civil Procedure, in Ejectment Execution Case

No.10 of 2016 arising out of Ejectment Suit No.39 of

2005. The said application was registered as Misc. Case

No.81 of 2019.

In the said application, the opposite party claimed

to be a tenant under one Rashida Hamid. According to

the opposite party, Rashida was the owner of Premises

No.168A, Tiljala Road and the landlady of the said

opposite party. The opposite party was running a leather

business from the said premises, upon obtaining trade

licence from the Kolkata Municipal Corporation. The

electricity connection from the CESC authority had also

been provided.

In the Misc Case 81 of 2019, the opposite party

alleged that Zubaida Hamid, obtained an eviction decree

against Ramlal and others, in respect of a separate and

distinct premises and not premises No.168A, Tiljala

Road. Yet, she was attempting to execute such decree

against the premises of which the opposite party was the

tenant, under Rashida Hamid and not the decretal

premises.

The opposite party prayed that the men and agents

of Zubaida Hamid should be restrained from disturbing

the business of the opposite party and should further be

restrained from ousting the opposite party and his

business from the premises No.168A, Tiljala Road by

wrongly executing the decree in respect of premises No.

B/168/A/H/1, Tiljala Road.

The opposite party also filed an application under

Section 151 of the Code of Civil Procedure and prayed

for stay of all further proceeding in Ejectment Execution

Case No.10 of 2016 arising out of Ejectment Suit No.39

of 2005. According to the opposite party, Premises

No.168A, Tiljala Road was a thika property and the

decree was passed as the court was misled by Zubaida

Hamid. It is also submitted that by an order dated July

6, 2022 Zubaida Hamid was restrained from

dispossessing the petitioner.

The facts are that the eviction decree was obtained

by the petitioner Zubaida Hamid against one Ramlal and

others. The decree was challenged by the judgment

debtor before the learned District Judge vide Ejectment

Appeal No. 78 of 2016. Rashida Hamid was the

constituted attorney of the Ramlal and orthers

(judgment debtor). In the said Ejectment Appeal, an

order of stay was granted in favour of the appellant

therein on the condition of payment of occupational

charges of Rs.50,000/- per month to the decree holder.

The said order was vacated due to non-

compliance.

Sunil Shaw the opposite party claiming to be a

tenant under Rashida Hamid, filed the Misc. Case being

No. 81 of 2019 along with an application for stay.

While deciding the application for stay, the learned

executing court by an order dated September 22, 2022,

held that as Sunil Shaw claimed himself to be the tenant

of Rashida Hamid, the constituted attorney of the some

of the judgment debtors and was residing in the decretal

premises, he had the same obligation to pay the

occupational charges for being in occupation and

possession of the property. It was also observed that

Ramlal had surrendered the tenancy to Rashida Hamid

and Rashida Hamid had inducted Sunil Shaw therein.

The learned executing court took into

consideration the order dated March 20, 2021 and July

6, 2022 and found that the order dated March 20, 2021,

clearly stated that the said order would not operate as a

stay over the execution proceeding. By the order dated

July 6, 2022 the opposite party was protected to the

extent that Zubaida Hamid was directed not to disturb

the peaceful possession of the opposite party in respect

of the case property.

From the records, it was clear to the learned

executing court that the opposite party was in

occupation of the decreetal property and the decree

holder was entitled to enjoy the fruits of the decree. The

court observed that stay of the execution of the decree

should be subject to payment of the occupational

charges and the decree holder should not be deprived in

any way from proceeding with the execution only on the

ground that an application under Order XXI Rules 98 to

101 of the Code of Civil Procedure was pending. The

court found that it was an admitted position that the

opposite party was in possession of the decreetal

property and was enjoying the tenanted portion without

paying anything to the decree holder.

Thus, the court held that the opposite party was

liable to pay the occupational charges to the petitioner

till the date of his occupation or till the disposal of the

Misc. Case. So far as the amount of occupational

charges was concerned, the court found Rs.50,000/- per

month as the reasonable amount. In the Ejectment

Appeal from the decree No.78 of 2016 a stay of execution

had been granted provided that an amount of

Rs.50,000/- was paid by the judgment debtor. The

execution court followed the said order as far as

occupational charges was concerned. The said amount

was directed to be paid within 15th of every month till

the opposite party continued in possession of the

decretal property. The arrear occupational charges from

the date of filing the Misc. Case, i.e., May 28, 2019 was

directed to be paid within four months from the date of

the order, i.e., September 22, 2022. It was 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 of

Rs.50,000/- as directed the order as directed on

September 22, 2022 by the executing court, the

petitioner prayed that the execution should 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 registered as Misc Case

No.208 of 2017. By an order dated January 18, 2013,

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

police help was granted.

The opposite party preferred an appeal being Misc.

Appeal No. 30 of 2023. The appeal was heard by the

learned Additional District Judge, 14th Court at Alipore,

who stayed the operation of the order of execution

through police help, till the disposal of the appeal. Such

order dated March 22, 2023 is under challenge in this

application.

This court is of the view that when the learned

executing court had found that the opposite party was in

possession of the property in question without paying a

single farthing to the decree holder and had directed

payment of Rs.50,000/- per month, with a default

clause that the execution proceeding would continue in

case of default in such payment, the learned Additional

District Judge, 14th Court, Alipore ought to have taken

into consideration such aspect and granted the stay on

condition that such occupational charges were paid.

A Title Appeal was filed by the defendants.

Rashida Hamid through whom the opposite party

claimed to be in possession as a tenant in respect of the

property in question is the constituted attorney of the

judgment debtors. The appeal court had also directed

that Rs.50,000/- to be deposited, if the operation of the

judgment and decree is stayed.

This court is of the view that the learned

Additional District Judge, 14th Court at Alipore could not

have allowed the stay of the order of execution through

police help, without directing payment of Rs.50,000/-

Under such circumstances, the interim order

dated March 22, 2023 passed by the learned Additional

District Judge, 14th Court at Alipore is erroneous and

contrary to law as also contrary to the orders passed

earlier in the proceedings, and is set aside. 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 revisional application is accordingly disposed

of.

In view of disposal of the revisional application,

CAN 1 of 2023 and CAN 2 of 2023 are also disposed of.

The opposite party shall be at liberty to take all

the points raised before this learned court at the

appropriate stage in an appropriate proceeding.

There will be, however, no order as to costs.

Parties are to act on the basis of the server copy of

this order.

(Shampa Sarkar, J.)

Later:

The order is delivered in open Court. The learned

advocate for the opposite party prays for stay of

operation of the order. The same is considered and

rejected.

(Shampa Sarkar, J.)