Subhasis Dasgupta, J. - (1.) The impugned order dated 17th February, 2018 and 20th May, 2017, both passed by the learned Civil Judge (Junior Division), Fourth Court at Sealdah, District - North 24-Parganas in Ejectment Execution Case No. 2 of 2016 allowing petition under Section 151 read with Section 152 CPC with a direction upon judgment debtor to deposit security of Rs.5000/- within two weeks from the date of the order is the subject matter of challenge in this revisional application.
(2.) It was contended by the petitioner/revisionist that the Court below without understanding the real purport of the petition dated 04.09.2017, taken out by the decree holder/petitioner, in its real perspective proceeded to dispose of the same with a direction upon the opposite party/JDR to deposit security of Rs.5000/- without granting the occupational charges in respect of the premises under possession of JDR. The argument was raised further that the provision available to Appellate Court in exercise of the power under Order 41 Rule 5 Sub-Clause 3 may also be permitted to be exercised by the Executing Court, otherwise the decree holder would not be able to enjoy the fruits of the decree during his life time for the delatory tactics being adopted by the party putting resistance to the execution of decree. The Executing Court thus acted without jurisdiction in not applying the principle governing the grant of stay, ordinarily exercisable by the Appellate Court under Order 41 Rule 5 of the Code, and the Executing Court invoking the same principle could have imposed occupational charges against the judgment debtor as a condition for grant of stay.
(3.) Learned advocate for the opposite party/JDR/defendant submitted controverting the submission raised by the decree holder/petitioner that the Court below committed no illegality in disposing of the petition under Section 151 CPC filed by the revisionist seeking security deposit in a case where an ex parte decree was passed against the JDR/opposite party, to which the JDR/opposite party felt aggrieved and had already taken out an application under Section 47 CPC, which was registered as Misc. Case and the stay of the execution proceeding had already been granted by the Executing Court. According to OP/JDR since there was no order regarding deposit of occupational charges, while granting stay order by the Executing Court in connection with a proceeding under Section 47 CPC, the order granting stay of the execution proceeding could not be modified with imposition of occupational charges by filing a petition under Section 151 CPC.;