ARIJIT PASAYAT, J. - (1.) CHALLENGE in these appeals is to the order passed by a Division Bench of the Calcutta High Court in an appeal which was directed against the order of the learned Single Judge dated 23.3.2000. By the said order, the learned Single Judge in that application for execution appointed Receiver for realization of commercial charges and consolidated rates and taxes in terms of prayer (e) of column 10 of the tabular statement. The order was passed on 9.2.2000 wherein it was recorded in terms of earlier order dated 18.5.1999 that the judgment debtor did not pay any instalment and in that view the decree dated 13.10.1982 had become executable. The second order dated 9.2.2000 was not challenged in any proceedings. The application was made by the tabular statement before the learned Single Judge for execution of the decree dated 13.10.1982. The said decree was passed by consent of the parties and parties filed their terms of settlement in the Court on the basis of which the said consent decree was made. The decree was subsequently modified by consent of parties by order dated 26.4.1990 and subsequently the decree was transferred by the then decree-holder in favour of the applicant-respondent for execution proceedings. The execution proceedings were related to recovery of the immovable property and money on account of rates, taxes and commercial surcharge levied by the Municipal Corporation of Calcutta (in short 'Corporation') under the Municipal Corporation Act, 1980 (in short the 'Corporation Act') which operated prospectively from 4.1.1984. An order was made in terms of prayer (b) of the tabular statement on the earlier occasion and also in terms of prayer (f) as recorded in the order dated 2.9.2000. By another order dated 30.3.2000 application was rejected.
(2.) STAND of the appellant was that the learned Single Judge was incorrect in passing the order directing execution by way of appointment of Receiver since the commercial surcharge is not payable according to Corporation Act and the consolidated rates and taxes are determined by the Corporation. STAND before the High Court was that since no rate had been produced and it was not so as determined by the Corporation, there is no question of paying any amount by way of surcharge. It was urged that the Corporation Act envisages one consolidated rate bill payable by the owner which is recoverable by the owner from the occupier. It was urged that the earlier order dated 10.3.1999 as well as the order of the Division Bench did not consider this aspect. Therefore, it was submitted that the application should not have been disposed of under Section 47 of Code of Civil Procedure, 1908 (in short 'CPC'). Stand of the respondents, on the other hand, was that there was no dispute with regard to amount payable and the appellant had in fact paid the amount. The question was considered by the earlier Division Bench by an order dated 18.5.1999. The order was challenged before this Court by SLP which was not accepted. Reference was also made to a letter dated 10.12.1999, which clearly indicated the liability for commercial surcharge. The Division Bench considered the respective stand. It was noted that the claim can be divided into two parts. One part of the claim is from 1976 upto 4.1.1984, when the Corporation Act came into force and the second portion of the claim is subsequent to coming into operation of the said Act. So far as the first portion is concerned, there was no argument on behalf of the appellant. It was not explained as to what would be its stand for non-payment of the dues prior to the operation of the Act. It was, however, submitted by the appellant that under law prevalent at the relevant time, the rate bill should have been presented to the occupier for payment and since there was no such presentation, the question of non-payment does not arise. The High Court did not accept this stand with reference to the consent decree. The High Court also did not accept this stand that after the Corporation Act came into operation, there was one consolidated rate bill and amount was not determined and the primary obligation "Owner to pay and thereafter recover from appellant", and as such the appellant is not liable. It was noted that it all along made payment in terms of clause 7 of the terms of the settlement before the High Court on the basis of which the consent decree was passed. There was no dispute with regard to the amount raised at any point of time.
(3.) THE Division Bench also did not find any relevance of the fact that letter dated 10.12.1999 was issued under the heading "without prejudice". THE High Court was of the view that it is clear from the letter that there was no dispute with regard to the amount and the expression "without prejudice" referred to any other contention that could have been raised by the appellant. Since the appellant was paying the amount without any dispute, the stands raised were not acceptable. In the earlier round also, the Division Bench noted this stand which was indicated in the memorandum of appeal and SLP before this Court was withdrawn. THE appeal was accordingly dismissed. In support of the appeals, it has been contended as follows: (1) Commercial surcharge only becomes payable after the same is determined by the Corporation. Since that has not been done and there is no assessment and no demand by the Corporation, the question of any liability does not arise. (2) Commercial surcharge payable under the Act since 4.1.1984 and the same is not payable. ;