Moushumi Bhattacharya, J. - (1.) This is an application filed by the defendant for stay of the suit till the disposal of the appeal filed by the defendant before the Division Bench of this Court by which the execution proceedings was directed to be stayed unconditionally for a period of two weeks and the defendant was directed to deposit the occupational charges of the suit premises in a certain manner directed by the Appeal Court.
(2.) The background of the present suit is this. The plaintiff filed an Ejectment suit in 2010 before the learned City Civil Court for a decree of recovery of possession against the defendants (Shyam Engineering Company Pvt. Ltd., defendant no.1 and Shyam Sel Limited defendant no. 2) in connection with an office space on the first floor of premises situated at Ganesh Chandra Avenue, Kolkata. The plaintiff's case was that the defendant no.1 tenant had sub-let the suit premises to the defendant no.2. The defendants contested the suit taking the defence that the defendant no.1 was a lawful tenant. By a final judgment and decree dated 22nd September 2015, the learned City Civil Court held that the defendant no.1 cannot be accepted as a tenant and is a sub-lessee without the consent of the plaintiff landlord. The defendant no.2 (before the City Civil Court) preferred an appeal from such decree before this court together with a stay of population of the judgment. By an order dated 13th July 2016, the Division Bench of this court was pleased to direct that all further proceedings in the execution case would remain stayed unconditionally for a period of two weeks subject to the defendant depositing arrear rent up to June 2016, at the rate of last paid rent together with decretal costs in the executing court.
(3.) In July 2017, the plaintiff filed the instant suit for recovery of money on account of mesne profit along with interest from 8th July 2014 till 7th July 2017. As part of the cause of action pleaded, the plaintiff stated that the defendant is continuing in possession of the suit premises as a trespasser and the defendant has no right to remain in occupation of the suit premises. The plaintiff filed an application for appointment of a Commissioner to determine the mesne profit which was dismissed by an order dated 17th July 2017 wherein it was observed that the decree passed by the learned City Civil Court had been stayed in the appeal and the outcome of the suit would depend upon the findings of the Appellate Court.;