Appellate courts have discretion in awarding stay conditions but cannot modify final orders unless new substantial evidence justifies such action; past decisions are binding under the principle of res judicata.

JUDGMENT :

SUBHENDU SAMANTA, J.

1. This is an application seeking modification variations and/or recalling or order dated 6th April, 2005 passed by the Hon’ble Division Bench in CAN 930 of 2005. In connection with SAT 168 of 2005.

2. Respondent of the second appeal is applicant herein.

3. Brief fact of the matter is that present respondent being plaintiff filed a suit for eviction before the trial court being ejectment suit No. 584 of 1995. The said suit was decreed on 13.02.2003, against such decree, the present appellant being the defendant challenged the said judgment and decree before the 1st Appellate Court. The 1st Appellate Court has affirmed the judgment and decree passed by the Learned Trial court on 12th October 2004. Against the order of 1st appellate court, the instant second appeal has been preferred by the appellant. In connection with the appeal, appellant filed an application being CAN 930 of 2005, praying for stay of further proceeding of execution case initiate by the present respondent. In terms of the prayer of the appellant the division bench of this court vide its order dated 6th April, 2005 disposed of CAN 930 of 2005 with following observations.

4. The suit is for eviction under the provisions of the West Bengal premises Tenancy Act, 1956 which has been decreed by both the courts below. Since the appeal has been admitted for hearing under Order 41, Rule 11 of the Code, we are of the view that execution of the said decree, pending disposal of the above appeal, will invite multiplicity of proceedings. accordingly, we grant stay of all further proceeding of execution Case No. 75 of 2003, pending before the 4th Bench of Small causes court at Calcutta, for a period of six months from date or till the disposal of the appeal whichever is earlier with liberty to apply for extension in the event the appeal is not disposed of within the aforesaid time on the following conditions:

i) The defendant-appellant will deposit the arrears of rent, if there be any and all decreetal cost with a period of four weeks with the executing court.

ii) The defendant-appellant will go on paying occupation charges at the rate of monthly rental at which it was lastly paid from the month of April, 2005 which shall be deposited by 15th May, 2005 and thereafter for every month, iii) In default of deposit of the amount mentioned under Item no. 1, and current occupation charges for consecutive two months, the interim order shall stand vacated. The hearing of the appeal be expedited.

5. Thereafter, the said interim order was made absolute by an order dated 8th September, 2010 and extended till the disposal of the instant appeal or until further order.

6. It is the contention of the petitioner that the appellant suffered a decree on 11th February, 2003 but continue remain in possession and occupation thereof. This court has directed appellant to pay occupational charges according to the last paid monthly rent. Such order is continued and still in force. It is the further contention of the appellant that the Hon’ble Supreme Court in several judgments has held that if tenants have suffered decree for eviction is liable to pay occupational charges according to the current market rate. He submits that appellant is in possession of 1482 Sq. Ft. of commercial space in a building adjacent to the High Court, Calcutta, commercial value of the property is one of the highest in the city and it is at least Rs.100/- per Sq. Ft.

7. He further submits several documents and copies of agreement to substantiate the fact that the rate of Rs. 100/ per Sq.Ft. in respect of th