Execution of decree established proper mesne profit calculations, confirming obligations for payment by judgment debtor.

Biswaroop Chowdhury, J.: This is an application for Execution of the Decree passed on October 6, 2023 and corrected by Order dated December 13, 2023 read with order dated December 15, 2023 passed by a Learned Co- ordinate Bench of this Court in C.S. No. 72 of 2006.

It is the contention of the Decree holder that the decree-holder filed the present suit being CS. No. 72 of 2006 inter-alia praying for the following reliefs:

a) Decree for peaceful vacant possession of the tenanted portion of the second floor of the premises No. 15 Park Street Kolkata-700016 more fully described in Annexure ‘A’.

b) Decree for Rs. 6, 99, 917/- on account of mesne profits;

c) Decree for further mesne profit @ Rs. 75 per squere feet per month on and from 21^st March 2006 till recovery of possession along with interest @ 12% p.a;

d) Alternatively an enquiry into mesne profit and decree for such sum and at such rate as may be found due upon enquiry;

e) Interim interest and interest upon judgment @ 12% p.a.;

f) Receiver.

g) Injunction.

h) Costs;

i) Such further and/or other reliefs.

2) The Decree holder in the said suit applied for a summary decree by filing an application under chapter XIII A of the Original Side Rules of this Hon’ble Court being GA No. 1730 of 2006.

3) The application filed under Chapter XIII A of the Original Side Rules of this Hon’ble Court was allowed and an eviction decree was passed on July 14, 2009. In terms of the decree for eviction dated July 14, 2009, a Special Referee and/or Mesne profit Commissioner was appointed to inquire into the mesne profits which was due and payable by the judgment debtor to the decree holder on account of wrongful and illegal possession of the premises and to submit a report before this Hon’ble Court. The Learned Special Referee and/or Mesne Profit Commissioner entered upon reference and made and published his report on May 7, 2012.

4) The Judgment Debtor being aggrieved by and dissatisfied with the judgment and decree dated 14thJuly 2009 preferred an appeal before the Division Bench of this Hon’ble Court which was dismissed. Thereafter the Judgment Debtor preferred a Special Leave Petition before the Hon’ble Supreme Court and the same was also dismissed.

5) On 15^th September 2009 the Hon’ble Division Bench directed the judgment debtor to deposit Rs. 100,000/- per month as occupational charges which was to be kept in a short term fixed deposit in a Nationalized Bank. By Judgment and order Dated January 16, 2013 the Hon’ble Court passed an order that the occupation charges as paid by the judgment debtor would be subject to the finding of the Special Refree on the Mesne Profit and the decree holder also undertook to give adjustment to the amount lying in the fixed deposit with the total sum claimed herein towards the mesne profit.

6. The decree holder upon receipt of the report of the Learned Special Refree and/or Mesne Profit Commissioner filed an application before this Hon’ble Court being G.A. No. 8 of 2019 inter alia praying for the following reliefs.

a) delay if any in filing the present application be condoned.

b) Report of the Learned Special Refree being Annexure ‘C’ hereof dated 7^th May 2012 be confirmed and final decree be passed in accordance therewith.

c) Ad-interim orders in terms of prayers above.

d) Such further and/or other order or orders be passed direction as directions be given as to this Hon’ble Court may deem fit and proper.

7. The judgment debtor filed an application inter alia, taking exeption to the report dated May 7, 2012, made and published by the Learned Special Refree and/or Mesne Profit Commissioner.

8. The application of the decree holder and the judgment debtor were heard analogously by this Hon’ble Court and on September 6, 2023 and September 18, 2023 the decree holder’s application inter alia for confirmation was allowed and the judgment debtor’s application, inter alia taking exception to the report of the Learned Special Referee was dismissed by a judgment and decree dated October 6, 202