Calcutta High Court
Shivani Properties Private Limited vs Rajeev Lochan on 7 April, 2026
1
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
LAST HEARD ON: 24.09.2025
DELIVERED ON:07.04.2026
PRESENT:
THE HON'BLE MR. JUSTICE BISWAROOP CHOWDHURY
I.A. No. GA 5 of 2025
IN
C.S. No. 223 of 2013
IN
E.C. No. 520 of 2019
Shivani Properties Private Limited VS Rajeev Lochan
Appearance:
Ms. Manali Bose, Adv.
Ms. Tutul Das Singh, Adv.
Mr. Ranjit Singh, Adv.
Ms. Pooja Sett, Adv.
... for the judgment-debtor (applicant in GA/3/2022 & respondent in
GA/2/2022)
Mr. Avinash Kankani, Adv.
Mrs. Aunima Lala Sengupta, Adv.
2
Mr. Suman Majumder, Adv.
… for the decree-holder (applicant in GA/2/2022 & respondent in
GA/3/2022)
This is an application under Order XXI of the Code of Civil Procedure
1908 filed by the Decree-holder with the following prayer.
a) Recovery of mesne profit from the judgment debtor from July 2013 to
March 2025, a sum of Rs. 63,21,651/- as particularly mentioned in
paragraph No. 8 of the affidavit in support of this Masters Summons
along with future mesne profit until delivery of vacant possession of
the said premises to the decree holder.
b) Recovery of interest on mesne profit from the judgment debtor to
payment of interest on mesne profit from July 2013 to March 2025 a
sum of Rs. 20,85,849.36/- as particularly mentioned in paragraph
No-8 of the affidavit in support of this Master’s summons until
delivery of vacant possession of the said premises to the decree
holder.
c) An order be passed directing the judgment debtor to mesne profit with
interest till the date of handing over the physical possession of the
said premises morefully described in schedule ‘W’, ‘X’, ‘Y’ and ‘Z’ of
this affidavit in support of this Master’s summons which are all
located at premises No. 5, Kiran Shankar Roy Road Kolkata-700001.
3
d) A fit or proper person be appointed Receiver in this matter and be
directed to take physical possession of the assets and properties
mentioned in schedule of Assets of the affidavit in support of this
Master’s Summons.
e) The receiver be further directed to sell the said assets and properties
mentioned in the said inventory list by way of private treaty or public
auction and hand over the sale proceeds thereof to the decree holder
in pro-tante satisfaction of the said final decree dated January 25,
2018.
f) An order of injunction be passed restraining the judgment debtor from
selling and/or disposing of and/or alienating and/or dealing with in
any manner the said properties and assets mentioned in the schedule
of Assets of the said affidavit in support of this Master’s Summons;
g) The properties and assets mentioned in the schedule of Assets of the
said affidavit in support of this Master’s summons be attached;
h) In the event any obstruction or interference is caused by the judgment
debtor to the Learned Receiver from carrying out the directions of this
Hon’ble Court an order be passed directing the local police authorities
to ensure that the Learned Receiver is able to carry out his duties.
i) An order be passed directing the judgment debtor to appear before
this Hon’ble Court to be orally examined as to whether any or what
debts are owing to the judgment debtor and whether the judgment
4
debtor has any or what properties or means for satisfying the said
decree.
j) In the event, the judgment debtor fails to attend this Hon’ble Court as
directed above a warrant be issued for their arrest and they be
directed to show cause as to why they should not be committed to
civil prison for such term as this Hon’ble Court may deem fit and
proper.
k) In the event the judgment debtor fails to attend this Hon’ble Court as
directed above a warrant be issued for their arrest and they be
directed to show cause as to why they should not be committed to
civil prison for such term as this Hon’ble Court may deem fit and
proper.
l) An order of injunction be passed restraining the judgment debtor from
disposing of encumbering alienating and/or dealing with in any
manner whatsoever with all his assets and properties including those
which will be revealed by the said judgment debtor in his affidavit of
assets to be filed before this Hon’ble Court.
m) In the event, further assets and properties of the judgment debtor are
made known before this Hon’ble Court by the judgment debtor in the
course of this proceedings the Receiver to be appointed herein be
directed to take possession of the same and sell the same by way of
public auction or private treaty and hand over the sale proceeds
thereof to the decree holder;
5
n) An order be passed directing the issuance of notice under Order XXI
Rule 41 of the Code of Civil Procedure to the judgment debtor;
o) Ad-interim orders in terms of prayers above.
p) Costs of and/or incidental to this application be paid by the judgment
debtor;
q) Further and/or other order or orders be passed and/or direction or
directions be given as this Hon’ble Court may deem fit and proper.
The contention of the plaintiff/decree holder may be summed up thus;
i) On January 24, 1994 the plaintiff qua decree holder purchased the
immoveable properties more fully described in schedules ‘W’, ‘X’, ‘Y’
and ‘Z’ hereunder which are all located at premises no-5 Kiran
Shankar Roy Road Kolkata-700001 from Dipali Mallick by a
registered deed of conveyance. Since then the plaintiff is the
absolute owner of the said premises. The description of the said
premises mentioned for which eviction has been granted in C.S.
No. 223 of 2013 is same and identical to Schedules ‘W’ comprising
an area of 191 sq. ft, ‘X’ comprising an area of 108 Sqft. ‘Y’
comprising an area of 20 sq. ft. and ‘Z’ comprising an area of 150
sq.ft. of the plaint filed in the suit.
ii) Originally one Sumitra Devi Poddar was the tenant of Dipali
Mallick with respect to the rooms described in schedules ‘W’ ‘X’
and ‘Y’. Dipali Mallick had attorned the tenancy of Sumitra Devi
6
Poddar in respect of the three rooms of the said premises in favour
of the plaintiffs by three several letters dated January 24 1994.
iii) In May 2013, the plaintiff discovered that Sumitra Devi Poddar had
permanently left the said premises and the same was unlawfully
occupied by the defendant.
iv) The plaintiff being aggrieved by the act of the defendant being in
unlawful occupation of the property above-mentioned filed a suit
for eviction of the defendant being C.S. 223 of 2013.
v) The Suit C.S. 223 of 2013 was disposed by Judgment and decree
dated January 25, 2018 in favour of the plaintiff with a direction of
eviction upon the defendant. It was further directed that the
plaintiff is entitled to mesne profit and two Special Refrees were
appointed to determine the mesne profits for the defendants
occupation since the date of filing of the suit till the date of delivery
of possession by the defendant based on the prevailing market
rate. The Hon’ble Court granted interest @9% per annum over the
total amount of mesne profit and also awarded costs of Rs.
1,50,000/- payable by the defendant.
vi) An appeal was preferred by the Defendant/Judgment Debtor being
APD-209 of 2018 which was dismissed.
vii) The Learned Special Refrees who were appointed under the first
Judgment and decree determined the mesne profits for the
defendant’s occupation by submitting report dated January 18,
7
2021 and an application was filed for treating the said report as
part of the judgment and decree dated January 25, 2018. By an
order dated August 11, 2022 the said application being G.A. No. 2
of 2022 was allowed and it was directed that the said report be
made a part of the judgment and decree dated 25-12-2018.
viii) Thereafter Order dated August 11, 2022 was modified by
incorporating therein the mesne profits by observing as follows:
’12. It is further considered that in the usual course the rentals are
increased at the rate of 10% every three years and as such for the
purpose of calculating the quantum of mesne profit the market
rentals in respect of the property under reference as follows:
a) January 2021 till further 3 years Rs. 105 per sq. ft per month.
b) January 2017 to December 2020 Rs. 95 per sq. ft. per month.
c) January 2014 to December 2016. Rs. 86 per sq. ft. per month.
d) July 2013 to December 2013. Rs. 78, per sq. ft. per month.
13. Inspite of demands and requests being made on behalf of the
decree holder the defendants/judgment debtors have neither
vacated the said premises nor made any payment to the decree
holder apropos mesne profits pursuant to the said final judgment
and decree dated January 25, 2018.
2. There is no legal impediment to the said final judgment and
decree being executed by this Hon’ble Court.
8
3. In respect of mesne profits and interest as on March 31, 2025
there is due and owing to the said judgment debtor a sum of Rs.
84,07,500 as per the following particulars:
1. Mesne profits @78/- per sq. ft. per month from July 2013 to
December 2013 for an area of 469 sq. ft.
2. Mesne profits @Rs. 86/- per sq. ft. per month from January
2014 to December 2016 for an area of 469 sq. ft.- Rs. 14,52,024/-.
3. Mesne profits @Rs.95 per sq. ft. per month from January 2017
to December 2020 for an area of 469 sq. ft. Rs. 21,38,640/-.
4. Mesne profits @Rs. 105/- per sq. ft. per month from January
2021 to March 2025 for an area of 469 sq. ft.
Gross total – Rs. 63,21,651/-
Interest @9% p.a. as per decree dated 25-01-2018 – Rs.
20,85,849.36/-
Net Total (July 2013 – March 2025). – Rs. 84,07,500/-.
5. The Judgment debtor is in possession of and owns certain
assets and properties wherefrom their decreed debts can be
recovered. The particulars whereof are as follows:
Flat 103/C/2, Flower Valley Complex 493/B G.T. Road
Shibpur District-Howrah PIN-711102.
9
6. The Judgment Debtor continues to be in wrongful possession of
the said properties and the decree holder reasonably apprehends
that the said premises may be transferred alienated by the
judgment debtor, thus a fit and proper person be appointed
Receiver to take physical possession of the premises and hand over
vacant possession thereof to the decree holder.
7. It is necessary and proper that an order of injunction be passed
restraining the defendant and his men and agents from selling and
or disposing of and/or alienating schedule of Assets to the instant
application.
8. The Judgment Debtor be directed to file affidavit of assets
belonging to the Judgment Debtor.
The Judgment Debtor/Defendant filed affidavit in opposition to the
petition of Decree holder/plaintiff denying the allegations made in
the application.
It is contended by the Judgment debtor that the application is beyond
the scope of main execution case as the judgment and decree dated 25th
January 2018 did not provide any quantified decree as to mesne profits. The
execution petition was filed in 2019, seeking execution of the said judgment
and decree where no amount of mesne profits was made payable by the
judgment debtor.
10
It is further contended that no question of mesne profits being payable
by the judgment debtor can arise in view of the suit property having been
under the possession of Usha Devi and not under his occupation. The
judgment and decree was carried up in appeal by him and by an Order dated
16th August 2022, the Hon’ble Division Bench clarified that the judgment and
decree stood affirmed as it bound the judgment debtor. The judgment and
decree is unenforceable insofar as mesne profits are concerned against him
since he has never been in occupation of the suit property from institution of
the suit till date. It is also contended that no modified decree is sought to be
relied upon by the decree holder forming part of the main execution case, nor
has any modified decree been drawn up or completed by the Department. The
application at this stage in untenable.
The judgment debtor with regard to paragraphs 1 to 7 of the application
has denied and disputed the same. It is contended that the Orders dated 11th
August 2022 as 16th December 2022 cannot be enforced in the interlocutory
application in the main execution case as alleged. It is contended that
appropriate steps are being taken to challenge the purported orders dated 11th
August 2022 and 16th December 2022.
The judgment debtor has denied that the judgment debtor is occupying
any part of the building described in schedule ‘Z’ as alleged or at all. He has
further denied that he is a trespasser in respect of the suit premises as alleged.
He has also denied that the plaintiff is being deprived of any profit on account
11
of the defendant or that the plaintiff is entitled to recover any mesne profit or
damages from the defendant as alleged. It is contended that the report of the
special Referees are denied, and the said report is vitiated by violation of
principles of natural justice. The plaintiff has not taken any steps for obtaining
modified decree as sought to be relied on by the plaintiff.
With regard to the contentions made in paragraphs 8 to 31 of the
application the Judgment Debtor/Defendant has denied the allegations made
therein. The Judgment Debtor has denied that any part of the alleged sum of
Rs. 84,07,500/- is or can be said to be due or owning to the decree holder from
the judgment debtor as alleged or at all. He has denied that the judgment
debtor is seeking to obstruct or delay the execution of the decree or is about to
dispose of his assets or properties as alleged or at all.
The Judgment Debtor has prayed for dismissal of the application.
The Decree holder/plaintiff has denied the allegations made in the
affidavit in opposition by filing affidavit in reply. It is contended that the
judgment debtor cannot re-argue its case and cannot go beyond the decree. It
is further contended that no reliance can be placed upon the written statement
in an execution proceedings. It is also contended that this Hon’ble Court has
clearly held that Rajeev Lochan is in occupation of the suit premises and is
bound to pay the mesne profit.
With regard to paragraph 11 to 13 of the affidavit in opposition the
Decree holder contends that judgment debtor cannot go beyond the decree. It
12
is further contended that the report of the Learned Special Refree is final and
the same has been accepted by this Hon’ble Court. The judgment debtor did
not challenge the same and hence cannot make submission of same in
execution proceedings.
Heard Learned Advocate for the Decree-holder and Learned Advocate for
the Judgment Debtor. Perused the materials on record.
Learned Advocate for the Decree Holder submits that one Sumitra Devi
Poddar was the tenant in respect of a shop being room no-2 at the ground floor
of the said premises comprising 191 sq. Ft. approximately at the monthly
rental of Rs. 115/- payable according to the English calendar month. Similarly
she was also the tenant of another shop room at the ground floor of the said
premises at the Northern Gate comprising 108 sq. ft. approximately at the
monthly rental of Rs. 115/- payable according to the English calendar month.
The said Sumitra Devi Poddar was also a tenant in respect of a room on the
terrace of the said premises comprising 150 sq. ft. and approximately at the
monthly rental of Rs. 58/- payable according to the English Calender month.
Sometime in May 2013 it came to the knowledge of the decree holder that
the said Sumitra Devi Poddar has left the said premises permanently and is not
enjoying the premises in any manner whatsoever. The judgment debtor herein
had been in exclusive physical possession of three rooms as mentioned above
at the said premises and had been enjoying the same illegally being liable to be
evicted. The judgment debtor also had been in illegal occupation of a privy at
13
the ground floor at the main gate of the said Premises comprising 20 sq. ft.
Learned Advocate also submits that the Decree-Holder being aggrieved by the
acts of judgment debtor filed suit for eviction before this Court being C.S. No-
223 of 2013 for eviction of the Judgment Debtor which was disposed by
judgment and decree dated 25th January 2018. The judgment debtor was held
to be a trespasser in the said premises and it was held that the plaintiff/decree
holder is entitled to decree for recovery of possession of the said premises as
mentioned in the schedule of the plaint. The plaintiff was held to be entitled to
mesne profits which could not be readily assessed at the time of the decree and
for such purpose this Court appointed Joint Special Officers to determine the
mesne profit. The Learned Special officers upon conducting enquiry submitted
report, and the report with regard to mesne profit was incorporated as part of
the judgment and decree dated 25th January 2018.
Learned Advocate for the decree holder submits that the bone of
contention raised by the judgment debtor is that the present application is
beyond the scope of execution case as the modified decree is sought to be relied
upon in the main execution case which is not tenable in the eye of law. Learned
Advocate relies upon the modified drawn up decree at pages 34 to 42 of the
application and submits that the said drawn up and completion of decree has
been done by the Department of this Hon’ble Court as per the decision
contained in the order dated 11th August 2022.
14
There are no procedural latches that were established in the present
case.
Learned Advocate further submits that the decree was drawn up in
furtherance to the decree dated 25th January 2018, wherein Learned Special
Refrees were appointed for the purpose of determination of mesne profits as
permissible under Order XX Rule-12 of the Code of Civil Procedure 1908.
Learned Advocate also submits that the order dated 11th August 2022 modified
by the order dated 16th December 2022 could not have been passed without
the judgment and decree dated 25th January 2019. This Hon’ble Court has
already directed modifications of the judgment and decree by way of orders
dated 11th August 2022 and 16th December 2022 and subsequently the final
decree was drawn up and completed accordingly. Learned Advocate further
submits that the judgment debtor has failed to establish violation of any
provision of law or any procedural latches and have opposed the present
application only as a dilatory tactic. Learned Advocate also submits that the
Execution case be allowed.
Learned Advocate for the Judgment Debtor submits that GA 5 is an
interlocutory application in an execution case being E.C. No. 520 of 2019. An
execution case in accordance with the Order XXI Rule 11 of the Code of Civil
Procedure 1908/hereinafter for the sake of brevity referred to as the ‘CPC
1908′) is filed in relation to a decree dated 25th January 2018 passed by this
Court in C.S. 223 of 2013. The Applicant is trying to execute a subsequent
15
decree in an interlocutory application in an execution case which relates to a
different decree dated 25th January 2018.
Learned Advocate relies upon the provisions contained in Order XXI Rule
11 and Order XX Rule 12 of the Code of Civil Procedure and submits that in
view of the clear provisions of the CPC one execution application has to be filed
for each decree. There cannot be more than one decree executed in one
execution case. The cause title of the present execution case and the Tabular
Statement (which is the main execution application) relates to only the 2018
decree and not the subsequent final decree in respect of mesne profits. Thus
G.A. 5 is squarely outside the scope and ambit of the present execution case.
Learned Advocate further submits that CPC 1908 particularly provides
that when an enquiry as to mesne profit is directed the Court passing the
decree has to pass a subsequent final decree which is akin to a partition suit.
The preliminary decree herein is the decree dated 25th January 2018 passed by
this Court in C.S. 223 of 2013.
Learned Advocate also submits that even assuming decree holder’s case
to be correct the subsequent order/decree dated 16th August 2022 is a
subsequent decree under Order XX Rule 12 of the CPC-1908 and is required to
be executed independently.
Before proceeding to decide the material in issue at the outset it is
necessary to consider the Judgment and Decree dated January 25, 2018 and
Order dated August 11, 2022 and 16th December 2022.
16
By Judgment and Decree dated January 25, 2018 it was observed as
follows:
‘In answering the ISSUE Nos. 4 to 5 it is held that the defendant is a
trespasser in the suit premises and he is liable to be evicted therefrom.
Consequently the plaintiff is entitled to a decree for recovery of possession in
respect of the suit premises as mentioned in the schedule. The plaintiff is also
entitled to a mesne profit which cannot be readily assessed and for the purpose
this Court appoints Ms. Anjusree Mukherjee, Advocate Bar Association and Mr.
Soumyajit Ghosh Advocate Bar Library Club jointly as Special Refrees to
determine the mesne, profit for the defendant’s occupation over the suit
premises since the date of filing of the suit till the date of the delivery of
possession by the defendant on the basis of prevailing market rate. The Special
Refrees will be entitled to a remuneration for Rs. 35,000/- (Rupees Thirty Five
Thousand) only each to be borne by the decree-holder alone at the first
instance. The parties will render all possible assistance to the Special Refrees
to complete the quantification of mesne profits. The decree-holder shall also
bear the costs and expenses of the Special Refrees in conducting the reference.
So far the claim of interest is concerned the decree-holder will be entitled
to an interest @9% per annum over the total amount of mesne profit.’
Thus from the Judgment and Decree dated January 25th 2018 it is clear
that decree was awarded both for eviction of the defendant as well as for mesne
profit, only the mesne profit could not be quantified but interest on mesne
17profit was also fixed in the said decree. Joint Special Refrees were appointed to
enquire about mesne profit and submit a report.
Pursuant to submission of report by Joint Special Refree an application
being GA-2/2022 was moved for treating the report by Joint Special Refree
dated 18th January 2021 as part of the Judgment and decree dated 25th
January 2018, which was allowed by the following Order on August 11, 2022.
‘Accordingly the application GA-2/2022 is allowed.
The report of the Joint Special Refrees dated 18th January 2021 be made
a part of the judgment and decree dated 25th January 2018.
The concerned department is directed to draw up and complete the
decree accordingly.’
Thereafter an application being GA-4/2022 was moved by the Decree-
holder with a prayer that the order dated 11th August 2022 be modified by
incorporating therein the portion of the mesne profits as mentioned in the
report of the Joint Special Refrees.
The said application GA-4/2025 was allowed by the following order dated
16th December 2022.
‘Accordingly the application is allowed. Let the order dated 11th August
2022 be modified by incorporating therein the mesne profits as delineated at
paragraphs 12 and 13 of the report of the Joint Special Refrees and making it a
18part of the decree. However the remaining part of the order shall remain
unaltered. Draw up the decree accordingly.’
Now the point for consideration is whether a Separate execution case
ought to be filed for enforcing mesne profit.
In order to consider this issue it is necessary to deal with Order XX Rule
12, and Order XXI Rule 11.
Order XX Rule 12 of the Code of Civil Procedure provides as follows:
Order XX Rule 12 Decree for possession and mesne profits – 1) Where a
suit is for the recovery of possession of immoveable property and for rent or
mesne profits, the Court may pass a decree-
a) for the possession of the property.
b) for the rents which have accrued on the property during the period
prior to the institution of the suit or directing an enquiry as to such
rent.
ba) for the mesne profits or directing an inquiry as to such mesne
profits;
c) directing an inquiry as to rent or mesne profits from the institution of
the suit until-
i) the delivery of possession to the decree holder.
ii) the relinquishment of possession by the judgment-debtor with
notice to the decree-holder through the Court or,
19
iii) the expiration of three years from the date of the decree
whichever event first occurs.
2) Where an enquiry is directed under clause (b) or Clause (c) a final
decree in respect of the rent or mesne profits shall be passed in accordance
with the result of such inquiry.
Order XXI Rule 11 provides as follows:-
Order XXI Rule-11 1) Where a decree is for the payment of money
the Court may on the oral application of the decree holder at the time of the
passing of the decree, order immediate execution thereof by the arrest of the
judgment, debtor prior to the preparation of the warrant if he is within the
precincts of the Court.
2) Written application-Save as otherwise provided by sub-rule (1) every
application for the execution of a decree shall be in writing signed and verified
by the applicant or by some other person proved to the satisfaction of the Court
to be acquainted with the fats of the case and shall contain in a tabular form
the following particulars.
a) the number of the suit.
b) the names of the parties.
c) the date of the decree.
d) whether any appeal has been preferred from the decree;
20
e) whether any and (if any) what payment or other adjustment of the
matter in controversy has been made between the parties subsequently to the
decree.
f) whether any and (if any) what previous applications have been made
for the execution of the decree the dates of such applications and their results.
g) the amount with interest (if any) due upon the decree or other relief
granted thereby together with particulars of any cross decree, whether passed
before or after the date of the decree sought to be executed.
h) the amount of the costs (if any) awarded;
i) the name of the person against whom execution of the decree is
sought; and
j) the mode in which the assistance of the Court is required whether-
i) by the delivery of any property specifically decreed;
ii) by the attachment or by the attachment and sale, or by the sale
without attachment of any property.
iii) by the arrest and detention in prison of any person.
iv) by the appointment of a receiver;
v) otherwise, as the name of the relief granted may require.
3) The Court to which an application is made under sub-rule (2) may
require the applicant to produce a certified copy of the decree.
21
As an Executing Court cannot go beyond the ‘Decree’ passed in the suit
or proceedings this Court while exercising jurisdiction to execute the decree
cannot go beyond the decree.
As relied upon by Learned Advocate for the Judgment Debtor about the
contents in Execution Application as per Order XXI. Rule 11 of the Code of
Civil Procedure the Learned Advocate cannot satisfy as to how the application
is defective, moreso when the Decree holder has sought to enforce decree dated
25th January 2018 passed in C.S. 223 of 2013.
With regard to the submission of Learned Advocate for the Judgment
Debtor that the petitioner/Decree holder is trying to execute a subsequent
decree in an interlocutory application in an execution case which relates to a
different decree which is dated 25th January 2018 such plea cannot be
sustained. In the event a separate decree is sought to be enforced Courts have
inherent power to consolidate the proceedings in the interest of justice.
As the original decree is modified upon special refree submitting report
there cannot be piecemill execution of a decree.
As a decree-holder has to furnish the date of execution of decree in the
execution case application and in the instant case date of decree remains the
same although it is modified by subsequent order it has to be treated as one
Judgment and decree and not a separate decree. It has been held in different
Judicial pronouncements that there can be no piecemill execution of decree
22
and a decree has to be executed in one execution case although there may be
amendment in the execution case.
In the case of Ramdas Mukhopadhyay VS Uday Chand Mahatab
Bahadur; Reported in AIR-1949 Cal, this Hon’ble Court observed as follows:-
‘6. The next question which has been urged is that thedecree-holder cannot
at his option break up the liability without the consentof the judgment-debtors.
There is nothing in law to prevent a decree-holderfrom giving up part of his claim
and executing his decree only for a portion.He certainly cannot split up his claim
and ask for separate executionproceedings to be started in regard to each
particular portion of the claim,but there is nothing to prevent him from starting
execution proceedings withregard to part of the claim provided that he does not
proceed with the otherpart. Subsequently, he is not allowed in law to proceed
with the part which wasnot proceeded with before. Therefore, in the present
case, there is nothing inlaw to prevent the decree-holder from relinquishing one-
sixth share of thedecretal dues and proceeding with five-sixths of his dues.’
In the case of Kusum Kamini Debi VS Sailesh Chandra Chakravorty
reported in 1934 SCC Online Cal 166 this Hon’ble Court observed as follows:
‘2. The decree-holder, who is now represented by his legal representatives,
the present respondents, obtained a decree on 2-1-1932 in civil suit No. 59 of
1931 in the Court of the Additional District Judge, Raipur for a sum of Rs.
62,759/- with interest till realization at 6 per cent per annum simple. There was
23also a decree for costs amounting to Rs. 1,736-10-0. Six days later the decree-
holder filed his first application for execution.
We are not made aware, nor is there anything on the record to show,
whether interest for the six intervening days was claimed in that execution
application. We accordingly cannot say anything about it. That execution was
disposed of on 28-4-1936 as partly satisfied.
3. Thereafter a second application for execution was made on 3-7-1936.
By this application the decree-holder claimed the principal of the amount then
due but added a note to the following effect:
‘The interest has not been charged at present’. This application for
execution remained pending for several years because of a stay granted by this
Court. The stay was originally granted on 8-10-1940, but in view of
miscellaneous civil case No. 151 of 1940 the stay order had to be clarified by this
Court and the Division Bench then observed as follows:
‘We are prepared to place on record our view that the ‘execution
proceedings referred to in our judgment in Miscellaneous Appeal No. 204 of 1939
will be deemed to pend (and not merely the Collector’s proceeding or the sale of
the property will be deemed to pend) so that no fresh application in execution will
be necessary should the insolvency proceedings go off.’
24It is thus well settled that a Judgment and decree granting different
reliefs is to be executed in one execution case. Although execution application
can be amended but there cannot be separate execution case for each relief.
The decree holder by filing application GA-5/2025 has sought to amend
and consolidate the Execution case E.C. 520/2019 with the said application.
As necessary particulars are given which is required in execution case this
Court in exercise of inherent power in the interest of justice should proceed
with the same and grant necessary relief, by treating GA-5/2025 as an
amendment application to E.C. 520/2019.
Thus the decree-holder/petitioner has made out a case for intervention
of this Court for grant of reliefs as prayed for.
This application stands allowed in part at this stage. Let there be an
order in terms of prayer (d) (f) and (h) of the notice of Master Summons dated
18/03/2025.
For the purpose of taking physical possession of suit property Mr.
Subhas Roy Advocate Ph: – 9830955505 and Mr. Santanu Chakraborty
Advocate Ph:- 9830213141 are appointed as Joint Special Officers. Learned
Special Officers upon receipt of this order shall forthwith proceed to the suit
property affix notice and copy of this Order to vacate the suit property within 7
days from date of affixing notice. In the event the suit property is not vacated
within 7 days from the date of affixing notice necessary police help shall be
obtained to vacate the suit property. Upon the suit property being vacated
25report shall be submitted by the Learned Special Officers. In the event there is
any obstruction by any person steps shall be taken in accordance, with Law, by
obtaining police help.
Learned Special Officer are entitled to a remuneration of 1000 GM each
to be paid by Decree Holder. With regard to payment of mesne profits this
Court is of the view that although the Plaintiff/Decree holder has made out the
case for execution of the decree of mesne profits forthwith but in the interest of
justice parties should be granted an opportunity to settle the issue with regard
to mesne profit through mediation. Thus Hon’ble Justice Biswanath Somaddar
former Chief Justice of Sikkim High Court is appointed as Mediator to resolve
and settle the issue of Mesne Profits between the parties. Parties shall appear
in mediation proceedings on the dates fixed by Learned Mediator. Learned
Mediator is requested to commence mediation proceedings and submit report
on or before 19/05/2026.
As this application GA 5/2025 stands disposed but the Execution case
520 of 2019 is pending the report of Learned Mediator and report of Learned
Special Officer’s shall be submitted before Regular Bench having
determination.
26
The matter be placed before Regular Bench on 19/05/2026 subject to
the convenience of the Learned Bench.
(BISWAROOP CHOWDHURY, J.)
