Ashis Kumar Chakraborty, J. - (1.) This revisional application is directed against the order dated August 5, 2016 passed by the learned Civil Judge, Senior Division, Sealdah in Ejectment Execution Case No. 9 of 2015, arising out of Ejectment Suit No. 12 of 2013. By the impugned order, the learned Court below, as the executing Court, allowed the application filed by the opposite party, the defendant judgment debtor in the ejectment suit, by directing that all further proceedings of the execution case shall remain stayed till the disposal of an application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short the Code) filed by the opposite party, being Misc. Case No. 08 of 2015 praying for recalling of the ex parte eviction decree.
(2.) Shorn of detail, the facts which are relevant for deciding the present revisional application are that on October 3, 2013 the petitioner, as the sole surviving trustee of the Trust estate of Rathindra Nath Mukherjee, since deceased filed an ejectment suit before the learned Court below claiming a decree for recovery of possession of the suit property by evicting the opposite party therefrom and a decree for mesne profits. The suit property comprises 5910 square feet (approximately) of the ground floor and first floor of Premises No. P-6, C.I.T. Road, Scheme-LV, P.S. Entally, Kolkata. The petitioner claimed that since the monthly rent in respect of the suit property was more than Rs. 20,700/- the tenancy of the opposite party was governed by the Transfer of Property Act, 1982 and not by the West Bengal Premises Tenancy Act, 1997. On June 10, 2014 the opposite party entered appearance in the suit and prayed for time to file written statement. It also prayed for time to file an application for rejection of the plaint under Order 7, Rule 11 of the Code. On July 10, 2014 the opposite party once again prayed for time to file written statement and the learned Court below adjourned the suit till August 18, 2014 for filing written statement. However, on August 18, 2014 the opposite party did not appear before the learned Court below, the written statement was not filed and, as such, the suit was fixed for ex parte hearing on December 10, 2014. Even on December 10, 2014 the opposite party did not appear before the learned Court below, the petitioner's witness adduced evidence and the suit was adjourned till January 7, 2015 for ex parte argument. On January 7, 2015 the argument on behalf of the petitioner was concluded before the learned Court below and the suit was adjourned for order. On February 16, 2015 the eviction suit was decreed ex parte, directing the opposite party defendant to vacate the suit property within 90 days, failing which the petitioner would be entitled to execute the eviction decree. The learned Court below further held that the petitioner is entitled to get mesne profits to be assessed in a separate proceeding under Order 20, Rule 12 of the Code subject to filing of additional Court fees. On July 01, 2015 the opposite party filed an application under Order 9, Rule 13 of the Code before the learned Court below for setting aside of the ex parte decree. Since the said application was filed beyond the prescribed period of limitation, the opposite party also filed an application for condonation of delay under Section 5 of the Limitation Act. The delay in filing the application under Order 9, Rule 13 of the Code is yet to be condoned. On September 23, 2015 the petitioner, as the decree holder filed the execution application, being Execution Case No. 9 of 2015 before the learned Court below. In the execution application, the petitioner also filed an application for issuance of the writ of delivery of possession. It is at this stage, the opposite party filed the application, under Section 151 of the Code praying for stay of the execution application. The petitioner contested the said application of the opposite party and filed his written objection. In his written objection the petitioner disclosed the report of a Valuer showing that the present market rate of the suit property comprising 5910 square feet, at the rate of Rs.55/-, per square foot is Rs.3,25,050/-. The opposite party filed its rejoinder, but it did not dispute the correctness report of the Valuer, as disclosed by the petitioner nor did it disclose any document to claim that the present market rent in respect of the suit property would be less than Rs. 55/-, per square foot. By order dated August 5, 2016 the learned Court below, as the executing Court, disposed of the application filed by the opposite party under Section 151 of the Code by directing that the said execution application shall remain stayed till the disposal of the application filed by the opposite party under Order 9, Rule 13 of the Code. The learned Court below held that as the petitioner in his plaint claimed decree for mesne profits at the rate of Rs. 29,700/- per month, the opposite party appellant cannot be directed to occupation charges, at any higher rate As mentioned earlier, it is the said order dated August 5, 2016 mentioned earlier which is the subject-matter of challenge in this revisional application.
(3.) Assailing the impugned order, Mr. Haradhan Banerjee, learned advocate appearing for the petitioner contended that when the delay in preferring the application by the opposite party under Order 9, Rule 13 of the Code is not yet condoned and the application filed by the opposite party for recalling of the said ex parte eviction decree dated February 16, 2015 is not admitted as yet, the learned Court below committed an error of law in staying the said execution application. In support of such contention he relied on a decision of the Supreme Court in the case of Gagandeep Pratishthan Pvt. Ltd & Ors. v. Mechano & Anr., reported in (2002) 1 SCC 475. The second ground urged by Mr. Banerjee was that in any event, the learned Court below committed an error of law in passing the impugned order directing stay of the execution proceeding, without requiring the opposite party to pay occupation charges for the suit property at the present market rate, as per the valuer's report disclosed by the petitioner in his affidavit-in-opposition, that is, at the rate of Rs.3,25,050/- per month. He urged that it is now well settled that if a tenant having suffered an eviction decree prays for stay of operation the eviction decree, he has to pay the occupation charges at the market rate. In support of such contention, reliance was placed on behalf of the petitioner on the decisions of the Supreme Court in the cases of Y and State of Maharashtra & Anr. v. Super Max International Pvt. Ltd. & Ors., reported in (2009) 9 SCC 772. Mr. Banerjee also cited a decision of a learned Single Judge of this Court in the case of Austin Distributors (P) Limited v. Iswar Ganesh Chandra Jiu, reported in 2012(4) CHN (Cal) 78.;