Prasenjit Mandal, J. - (1.) THIS application is at the instance of the judgment debtor and is directed against the Order No.50 dated June 30, 2011 passed by the learned Judge, Presidency Small Causes Court, 3rd Bench, Calcutta in Misc. Case No.106 of 2009 arising out of Ejectment Execution Case No.98 of 2007 in connection with Ejectment Suit No.164 of 2001.
(2.) THE short fact is that the husband of the judgment debtor / petitioner herein was the original tenant under the decree-holder / opposite party herein in respect of the premises in suit at a rental of Rs.165/- per month. the decree-holder / opposite party herein filed a suit for eviction against the husband of the petitioner being Ejectment Suit No.164 of 2001 before the learned Small Causes Court, Calcutta and he got a decree for recovery of possession in the said premises in suit. Thereafter, the defendant / judgment debtor preferred an appeal and while admitting the appeal, the judgment debtor was directed to pay occupational charges / compensation at the rate of Rs.500/- per month for occupying the premises in suit from the date of passing the impugned judgment and decree of eviction. Ultimately, the judgment debtor lost the appeal. Then the decree-holder filed the application for execution of the decree being the Ejectment Execution Case No.98 of 2007. In that ejectment case, the judgment debtor / petitioner herein filed an application under Section 47 of the C.P.C. and that application was registered as Misc. Case No.106 of 2009. Upon hearing both the sides over that misc. case, the same was rejected on contest without cost. Being aggrieved, the judgment debtor has preferred this revisional application.
(3.) NOW, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the above facts are not in dispute. After disposal of the appeal, the judgment debtor continued in possession of the property under the execution case and he was paying the occupational charges at the rate of Rs.500/- per month and the landlord accepted the same. At one occasion, that is, for payment of rent for the month of September 2008, the tenant sent rent / compensation at the rate of Rs.165/-. On realising the fact that the rent was sent at the rate of Rs.165/- for the month of September 2008, the decree-holder returned back the said money with a protest letter and at that time, the judgment debtor sent Rs.500/- as rent which was accepted. Then, the judgment debtor filed an application under Section 47 of the C.P.C. contending, inter alia, that a new tenancy had been created and so, the execution application should be dismissed.;