S.K.Sen, J. - (1.) The appeals and the applications both are taken up for hearing. The appeal is directed against the judgment and order of the learned single Judge dated 23rd March, 2000 whereby the learned single Judge in the application for execution appointed Receiver for realisation of commercial charges and consolidated rates and taxes in terms of prayer (e) of column 10 of the Tabular Statement. It appears that an order was passed on February 9, 2000 wherein it has been recorded in terms of an order dated May 18, 1999 the judgment debtor did not pay any installment and in that view the decree dated October 13, 1982 had became executable. The second order dated February 9, 2000 has not been challenged by the judgment debtor in any proceeding. The application was made by the Tabular Statement before the learned single Judge for execution of the said decree dated October 13, 1982. It may be noted that the said decree was passed by consent of the parties and the 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 again by consent of the parties by an order dated April 26, 1990 and subsequently the decree had been transferred by the then decree holder in favour of the applicant/respondent for execution proceeding. The execution proceedings were related to recovery of immovable property and money on account of rates, taxes and commercial surcharge levied by the Municipal Corporation of Calcutta. An order had been 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 February 9, 2000. By another order dated 30th March 2000, section 47 applications was rejected.
(2.) The contention of the appellant is that the learned Judge was incorrect in passing an order directing execution by way of appointment of Receiver since the commercial surcharge is not payable according to Calcutta Municipal Corporation Act, 1980 and the consolidated rates and taxes is determined by the Calcutta Municipal Corporation. Clause (vii) of the consent decree provides as follows: - "The Defendant further undertakes and agrees to punctually and regularly pay Commercial Surcharge on consolidated rates @ 50% of the amount of Corporation tax or at such rate as Municipal Corporation of Calcutta may determine as and when the same is determined and becomes payable and the defendant shall keep the plaintiff or person claiming through the plaintiff fully discharged and indemnified."
(3.) Mr. Sen, learned Advocate for the appellant, has strangely contended that since no rate bill has been produced, nothing has been shown to show the rate as determined by the Municipal Corporation of Calcutta. There is no question of paying any amount by the appellant by way of surcharge. The contention of Mr. Sen is that the Calcutta Municipal Corporation Act, 1980 envisages one consolidated rate bill payable by the owner, which is recoverable by the owner from the occupier. Clause-7 of the Terms of Settlement of the consent decree as mentioned hereinbefore, in fact, is inconsonance with the said Statute. The said clause provides "The defendant shall keep the plaintiff or person claiming through the plaintiff fully discharged and indemnified". He has further submitted that when the parties have entered into such agreement, consent decree is nothing but an agreement between the parties. When there is a decree incorporating agreement in the Terms of Settlement, it is implied that they have acted in consonance with the Statute. The learned Judge without considering the fact what is due and payable by way of consolidated rates and taxes as not having been substantiated before the Court ought not to have directed execution by way of realisation by appointment of Receiver. Mr. Sen has further submitted that this aspect of the matter which is purely question of law has not been considered by the learned single Judge at all. He has further argued that the previous order of Sujit Kumar Sinha, J (as he then was) dated 10th March 1999 as well as the order of the Division Bench which heard the appeal against the said order also did not consider the same. It is, therefore, open for the appellant to urge the said point at this stage. The next argument of Mr. Sen is that the execution application was disposed of while section 47-application was pending.;