Syamal Kanti Chakrabarti, J. - (1.) The present application has been filed for vacating conditional stay order dated 11.08.2009 passed in S. A. T. No. 194 of 2009 with C.A.N. 4442 of 2009 passed by a Division Bench of this Hon'ble Court and for fixation of occupational charges under order 21 rule 26 read with Section 151 CPC.
(2.) The petitioner has contended that he filed Title Suit No. 299 of 1996 before the 4th Court of the Learned erstwhile Munsif at Alipore, South 24 Parganas against the defendant for eviction from the suit premises and recovery of Khas possession on grounds of bona fide reasonable requirements and default with prayer for mesne profits for wrongful use and occupation of the suit property. Upon hearing both the parties the Learned Trial Court decreed the suit on contest on 25.04.2007 and the defendant was directed to deliver possession of the suit property within fifteen days from the date of the order failing which the plaintiffs will be at liberty to execute the same in due process of law. The suit was decreed mainly on grounds of default in payment of rent of Rs. 9,987.83 and the defendant was directed to deposit the said amount in five instalments. Thereafter the defendant preferred First Appeal against the aforesaid judgement and decree. The plaintiffs also filed petition as well as an application under order 21 rule 26 read with Section 151 CPC in the said Title Appeal no. 159 of 2007. While considering such First Appeal the Learned First Appellate Court stayed the proceedings but rejected the application under order 21 rule 26 CPC filed by the plaintiff opposite party, that means, the petitioner herein. The Learned First Appellate Court was pleased to dismiss the appeal on contest with cost on 17.12.2008 and affirmed the decree for eviction of the tenants passed by the Learned Trial Court.
(3.) The defendant thereafter filed the Second Appeal challenging the legality and propriety of the judgement and decree dated 17th December, 2008 passed by the Learned First Appellate Court in Title Appeal No. 159 of 2007 which is now under challenge being No. S. A. T. 194 of 2009.;