JUDGMENT :

Bibhas Ranjan De, J.

Re: CAN 1 of 2018

I am dealing with an application for stay of Execution Case being no. 28 of 2016 pending before the learned Civil Judge, (Junior Division) 3rd Court, Sealdah, District North 24 Parganans.

Background in Brief:-

2. Petitioner/appellant was a tenant under the respondent/plaintiff at a monthly rent in respect of a shop room in the buildings owned by the respondent/ decree holder at BH-13, Sector 2, Salt Lake City, Kolkata 700064.

3. In the year 2006 respondent/plaintiff initiated a proceeding before Rent Controller Bidhannager for fixation of fare rent which was assessed at Rs. 1980/- by the order of the Rent Controller on 26.03.2007. That order of Rent Controller was challenged in appeal before the learned Land Reforms and Tenancy Tribunal in OA(P) No. 688 of 2008 wherein the order of the Rent Controller was set aside with a direction to pass reasoned order after hearing.

4. In the meantime respondent/decree holder filed a suit being Ejectment Case No. 63 of 2009, for eviction against the appellant/judgement debtor before the Leaned Civil Judge (Junior Division), 3rd Court, Sealdah, North 24 Parganas.

5. Learned Civil Judge passed a decree in favour of respondent /plaintiff on the ground of default in payment of fare rent when there was no order of fare rent after reversal of the order of the Rent Controller in appeal before Land Reforms and Tenancy Tribunal.

6. Feeling aggrieved petitioner/appellant preferred an appeal being no. TA 75 of 2016 before the Learned Additional District Judge, 4th Fast Track Court at Barrackpore and that was dismissed on contest affirming the judgment and decree passed by the Learned Trial Judge.

7. Again, feeling aggrieved petitioner/appellant preferred the instant second appeal pending before this Court.

8. In the meantime, respondent/plaintiff put the decree into execution being Ejectiment Execution No. 28 of 2016 which is, right now, pending before the Trial Judge.

9. That is why, the instant stay application is taken out for stay of the execution proceeding pending before the Trial Judge.

10. Learned Advocate, Mr. Chandradya Roy, appearing on behalf of the petitioner/appellant, knowing the imposition of condition prior to passing any stay order, has contended that petitioner/appellant is a tenant in respect of a shop room which is the only source of income and in support of his contention he has referred to the rent receipts showing amount of rent in the locality of Salt Lake area, presumably, for fixation of occupational charge during stay of execution.

11. In opposition to that, Ld. Advocate, Mr. Arnab Roy, appearing on behalf of the respondent/plaintiff has strenuously contended that petitioner/appellant is running a Mio Amore shop in the tenanted premises for which eviction decree was passed and affirmed by the Learned First Appellate Court. In support of his contention he filed three (3) lease agreement along with several rent receipts showing status of prevailing rent in the locality of Bidhannagar/Salt Lake City.

12. With regard to imposition of conditions, Mr. Roy relied on a Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705

13. Atma Ram Properties (p) Ltd. (supra) laid down the principle as under:-

"8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse t