D/L- 67

25/03/2025 Ct. No.-6 Aritra C.O. 4489 of 2024 Sujit Kumar Dey Vs.

Mithu Dey & Anr.

Ms. Sohini Chakraborty Mr. Biswaroop Bhattacharyya Mr. Varun Kothari Mr. Arya Bhattacharyya Ms. Prajaini Das …for the petitioner Mr. Rajdeep Bhattacharya Ms. Sharmila Nath ….for the opposite party Ms. Chakraborty, learned advocate for the petitioner submits that though the orders dated July 20, 2024 and November 16, 2024 were challenged in the civil revision application but through inadvertence, in the preamble portion only the order date November 16, 2024 has been mentioned. The certified copy of the order dated July 20, 2024 has been filed in Court today, which is taken on record.

As prayed for by Ms. Chakraborty learned advocate for the petitioner leave is granted to the advocate on record of the petitioner to amend the preamble portion of the civil revision application, here and now.

The opposite party herein filed a suit for specific performance of contract. Such suit was decreed ex parte on December 12, 2016.

The petitioner herein filed a misc case under Order

9 Rule 13 of the Code of Civil Procedure praying for setting aside the ex parte decree. In the meantime, the ex parte decree was put into execution giving rise to Title Execution Case No.56 of 2018.

The petitioner filed an application praying for stay of all further proceedings in the title execution case. Alleging that the petitioner herein have inducted a lessee in a portion of the decretal property and is earning a substantial rental income therefrom, the opposite party herein filed an application praying for a direction upon the petitioner to pay occupation charges as a condition for stay of the execution case.

By an order dated December 16, 2023 the learned Executing Court passed an order of stay of the execution case subject to payment of occupation charges at the rate of Rs.8000/- per month. Thereafter, the opposite party herein filed an application under Section 151 of the Code of Civil Procedure praying for modification of the said order dated December 16, 2023. Alleging that the judgment debtor/petitioner herein is collecting rent at the rate of Rs.40000/- per month.

The learned Executing Court by an order dated July

20, 2024 directed the petitioner herein to file the affidavit along with agreement.

Subsequently, the learned Executing Court by an order dated November 16, 2024 directed the petitioner to pay Rs.35000/- directly to the Bank account of the decree holder.

Ms. Chakraborty, learned advocate appearing for the petitioner submits that an amount of Rs.35000/- was fixed on the basis of the submission of the leaned advocate for the petitioner. She submits that such submission was made by the learned advocate for the petitioner without any instructions being given to him by the petitioner. However, the fact remains that the agreement that is the lease deed by virtue of which the petitioner herein inducted a third party in the decretal property was not produced before the learned Executing Court.

A copy of the lease deed has been produced by Mr.

Chakraborty before this Court.

Mr. Bhattacharya submits that no copy of such lease deed has been supplied to the opposite party herein.

The learned advocate on record of the petitioner is directed to supply a copy of the lease deed to the learned advocate for the opposite party herein in course of this day.

After going through the materials on record and after considering the submissions made by the learned advocate for the parties this Court is of the considered view that the occupation charges has to be fixed by taking into considering the agreement entered into by the petitioner with the third party and other relevant factor. Since the said agreement was not placed before the learned Executing Court at the time when the impugned orders were passed, this Court is of the considered view that the impugned order is required to be set aside.

Accordingly the order dated November 16, 2024 is set aside and the application under Section 151 of t