The Appellate Court cannot pass an order implementing the conditions imposed at the time of granting stay of the execution proceeding while granting permission to withdraw the appeal.

HARISH TANDON, J.

1. The first appellate Court while allowing an application filed by the plaintiffs/petitioners for withdrawal of the first appeal simultaneously directed the compliance of the interlocutory order passed therein which is challenged in this revisional application.

2. Shorn of unnecessary details, a suit for recovery of possession was filed by the plaintiff/opposite party against the petitioner on expiration of lease by efflux of time. The said Title Suit No.12 of 1997 was decreed on contest and the petitioner was given 2 months time to vacate. The said judgment and decree was carried to appellate Court in Title Appeal No.56 of 2010 and an application under Order 41 Rule 5 of the Code of Civil Procedure was moved for stay of the execution proceeding and unconditional order of stay was passed by the Appellate Court on 23rd November, 2010. The plaintiff/opposite party challenged the said order in C.O. 3565 of 2012 which came up before this Court on 4th December, 2012 wherein an order was passed directing the petitioner to deposit the monthly occupation charges at the rate of Rs. 20 lakhs with effect from November 2012 till the disposal of the application for stay.

3. A special writ petition was filed before the Supreme Court which was dismissed as the said order is interim in nature. The fact remains that the Supreme Court refused to interfere with the said order and the petitioner was directed to contest the application for stay before the First Appellate Court. The said application was disposed of by the Appellate Court determining the quantum of occupational charges at Rs. 19 lakhs per month as condition precedent. The said order was further challenged in C.O. No. 2306 of 2013 before this Court. It appears that an execution case was levied by the plaintiff/opposite party and an application was moved to proceed with the same as the condition imposed for securing the order of stay was not complied with. By order dated 9th July, 2013, the Executing Court held that there is no impediment in proceeding with the execution case as the condition for stay has not been complied with by the petitioner. The said order was further challenged before this Court in C.O. 2306 of 2013 which was disposed of on 1st August, 2014 granting unconditional stay of the execution case till August 03, 2014 provided the petitioner deposits a sum of Rs. 5 lakhs by that time. It is undisputed that the petitioner deposited a sum of Rs. 5 lakhs and further decided not to press the earlier revisional application being C.O. No. 2306 of 2013. Subsequently it was brought to the notice of the Court that the petitioners surrendered the possession to the plaintiff/opposite party on 12th August, 2014 and subsequently filed an application for withdrawal of the appeal. Immediately thereafter the plaintiff/opposite party filed an application in the said appeal claiming an occupational charges fixed at the time of granting the stay of the execution proceeding.

4. By the impugned order, the Court not only allowed the petitioner to withdraw the suit but simultaneously passed an order directing the deposit of the occupational charges in terms of the interlocutory order passed in the said appeal.

5. Mr. Shaktinath Mukherjee, the learned Senior Advocate appearing for the petitioner submits that once the appellant decided not to proceed with the appeal and prays for withdrawal thereof without any further order in the form of liberty to file afresh for the self-same reliefs, the Appellate Court went wrong in passing order for depositing of the occupational charges. According to him, if the appeal is allowed to be withdrawn, the Appellate Court has no jurisdiction to secure the implementation of the interlocutory order passed on an application for stay. In other words, he wanted to contend that it loses jurisdiction to implement the order after permitting the appellant to withdraw the appeal.

6. Per contra, Mr. S.P. Roy Chowdhury, the learned Senior Advocate a