IMPORTANT POINT
A consent decree that creates a new tenancy cannot be executed without adhering to the legal provisions governing tenancy, rendering the execution proceeding void.

JUDGMENT :

(Apurba Sinha Ray, J.) :

1. The instant execution proceeding is being resisted from the side of the judgment-debtor contending that the instant execution proceeding is not maintainable. The original suit being CS No. 922 of 1986 was decreed on consent and according to the judgment-debtor, he has surrendered his tenancy in respect of shop room no. 1A and thereafter was inducted as a tenant in respect of a different shop room being shop room no. 1A/1 on the ground floor of premise no. 30, Ganesh Chandra Avenue, Kolkata – 700013 and as such there was a fresh induction of the judgment-debtor by the terms of settlement concluded before the Learned Court.

2. The judgment-debtor has further submitted that the decree dated 23.06.2014 stood satisfied upon the induction of the judgment-debtor as per terms of settlement and the incident of such subsequent tenancy would be governed by the provisions of West Bengal Premises Tenancy Act, 1997 irrespective of contrary contention in the terms of settlement.

3. He has further submitted that when there is a fresh induction the relation between the tenancy should be governed by the West Bengal Premises Tenancy Act, 1997 and the tenant cannot be evicted without due process of law. In this regard he has referred to a decision reported in (1980) 1 SCC 185 (Biswabani Pvt. Ltd vs. Santosh Kumar Dutta & Ors.). As the decree-holder refused to receive the rent the judgment-debtor has been depositing the rent with the Rent Controller.

4. The decree-holder, on the other hand, has submitted that the decree which is being executed was not a decree for eviction. According to him for non-compliance of certain terms of consent decree, the eviction of judgment-debtor was sought for. Initially, there was a suit for possession and in such suit a consent decree was passed which contends, inter alia, that if the judgment-debtor makes default in payment of rent he can be evicted from the suit premises by executing such consent decree without adopting any other process of law. As the judgment-debtor had defaulted in payment of rent the instant execution proceeding was brought. The judgment-debtor did not challenge the decree nor the decree has been declared by any court of law as null and void. The receiver was appointed in this proceeding on 03.07.2023. The learned counsel for the decree-holder has also drawn the attention of this court to the order dated 27.01.2016 passed by His Lordship Hon’ble Justice Harish Tandon. The judgment-debtor never challenged the decree and therefore the same attained its finality.

5. The learned counsel for the decree-holder, Mr. Banerjee, has further pointed out that the judgment-debtor took the defence that the plaintiff have refused to receive the rents. By referring to several pages of the affidavit-in-opposition, the learned counsel has drawn the attention of this court to the fact that though Gobin Chand Seal was the proprietor, rent was sent through cheques by one Subhashis Nandi. Neither he is the proprietor of judgment-debtor nor there is any intimation about the change of ownership of the said firm. The decree-holder is certainly bound to accept rent from an authorized person but acceptance of such rent from an unauthorized person would unnecessarily complicate the matter and therefore the decree-holder rightly refused to accept the same. Though the said Subhashis Nandi singed the relevant affidavit there is no authorization of Subhashis Nandi from the side of the judgment-debtor firm and, therefore, the provisions of West Bengal Premises Tenancy Act, 1997 would not apply in such a situation.

6. There is no application or affidavit for agitating the question of maintainability of the instant execution proceeding. Neither a petition for setting aside the relevant decree nor a petition under Section 47 of the Code of Civil Procedure, 1908 was filed on behalf of the judgment-debtor. The point of maintainability has been taken only on the basis of affidavit-in-oppositio