The absence of re-assessment of occupation charges by the appellate Court created an unfair advantage for the opposite parties, allowing them to enjoy the stay without having to pay any occupation charges.

Sabyasachi Bhattacharyya, J.

1. The facts of the present case are rather peculiar. The petitioner obtained an eviction decree against the judgment-debtors/opposite parties and levied execution by way of Ejectment Execution Case No. 86 of 2013. Meanwhile, the opposite parties preferred an appeal against the eviction decree and took out an application for stay of execution of eviction decree in connection with the said appeal. Initially, such prayer for stay was refused by the appellate Court, which was challenged by the judgment-debtors in revision before this Court, thereby giving rise to C.O. No. 131 of 2014. A co-ordinate bench of this Court, by order dated March 03, 2014 allowed the said revisional application, granting stay of the execution proceeding till disposal of the title appeal, subject to payment of all arrear occupation charges and current rent regularly by the judgment-debtors. Thereafter, a dispute arose as to the quantum of the occupation charges payable in terms of the order dated March 03, 2014. An application was taken out by the petitioner with a prayer to direct the judgment-debtors to pay Rs. 66,675/- per month as damages/mesne profits. On the other hand, the judgment-debtors/opposite parties filed an application for permission to deposit arrears rent for the months of June, 2013 to March, 2014 at the rate of Rs. 80/- per month, along with current rent. The appellate Court, vide Order No. 14 dated May 05, 2014, refused the prayer of the present petitioner, but allowed the application of the judgment-debtors/opposite parties by permitting the opposite parties to deposit arrears of rent and current rent at the rate of Rs. 80/- per month. Being aggrieved with such order dated May 05, 2014, the present petitioner preferred a civil revision, bearing C.O. 1993 of 2014, along with an application for review of the order of this Court dated March 03, 2014, giving rise to R.V.W. 171 of 2014. Such subsequent revisional application and review petition were disposed of together by an order dated September 16, 2016, whereby the same co-ordinate bench of this Court clarified that the appellate Court was to revisit the arrear occupation charges and current rent strictly in the light of the law laid down in Re: Atma Ram Properties (P) Ltd., thereby further clarifying that such was the expression of intent in the order dated March 03, 2015.

2. It is submitted on behalf of the present petitioner that subsequently there has been no re-assessment of the occupation charges payable by the judgment-debtors by the appellate Court.

3. Thereafter, the present petitioner prayed that the executing Court may proceed with Miscellaneous Case No. 2 of 2014, which was an application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure in connection with the execution case, in view of no stay order subsisting, since the opposite parties were not paying any occupation charges at the current market rate.

4. By virtue of the impugned order dated May 02, 2018, the executing Court held that, it found no order for vacating the order of stay initially passed by this Court and, as such, did not proceed with the execution case or the miscellaneous case.

5. Upon hearing learned Counsel for the petitioner and going through the materials on record, it is evident that the reasons assigned by the executing Court for passing the impugned order was not correct. In view of disposal of C.O. No. 1993 of 2014, there could be no doubt that the interim stay granted by this Court already stood vacated. However, in view of the appellate Court having till date not re-assessed the occupation charges payable by the judgment-debtors/opposite parties, it is not possible for the judgment-debtors/opposite parties to be sure as to what amount of occupation charges the judgment-debtors have to pay monthly. Since the assessment of occupation charges is at present in limbo, the judgment-debtors could not strictly be faulted for not paying any