Calcutta High Court (Appellete Side)
Debasish Dey (Das) & Ors vs Rabindra Nath Pal & Ors on 13 February, 2026
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
1
13.02.2026
Ct. No.21
Item No.2
(PA) SA 148 of 2007
with
CAN 1 of 2006
CAN 2 of 2017
Debasish Dey (Das) & Ors.
Vs
Rabindra Nath Pal & Ors.
Mr. Kallol Basu
Mr. Nilanjan Pal.
...for the
defendant/appellant
Mr. Ashok Banerjee, Sr. Adv.
Mr. Subrata Datta,
Ms. S. Sanyal,
Ms. K. Sinha.
...for the
plaintiff/respondent
The present appeal has been preferred by
the defendant/ tenant being aggrieved by and
dissatisfied with the judgment and decree
passed by the Ld. Additional District Judge, Fast
Track Court 1 Alipore, in Title Appeal No. 233 of
2003 dated 30.06.2006.
Factual matrix of the lis is that the
plaintiff/landlord filed a Title Suit being T.S. 26
of 1995 seeking eviction of the tenant from a
self contained flat consisting of three rooms, one
kitchen, one bath-cum-privy and verandah
situated in the ground floor of the building being
12-B, Indra Roy Road, PS Bhawanipur, Kolkata-
700025.
The said title suit has been dismissed by a
2
judgment dated 31.07.2003.
In the present appeal an application has been
filed being CAN 1 of 2006 ( bearing the old No
6410 of 2006) seeking stay of operation of the
judgment and decree passed in the title appeal
and title execution case no. 12 of 2006.
Affidavit-in-opposition has been filed against
the said application for stay and affidavit-in-
reply has also been filed by the petitioners.
Subsequently an application being CAN 2 of
2017 (bearing old No. 7644 of 2017) has been
filed on behalf of the landlords seeking
occupational charges. In respect of this
application also affidavit-in-opposition and
affidavit-in-reply have been filed.
Mr. Kallol Basu, Ld. Senior Counsel
representing the tenant during his exhaustive
submission has stressed upon the fact that the
application seeking occupational charges filed
by the respondent/landlord has been preferred
at a much belated stage. He has stressed upon
the fact that the present appeal was initially
tendered in the year 2006 being SAT 3305 of
2006 which has been renumbered as SA 148 of
2007. He has further submitted that at the time
of filing of the present appeal the application
being CAN 1 of 2006 was filed seeking stay of
operation of the impugned judgment. He has
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further submitted that the present appeal has
been admitted on 22nd March 2007 and three
substantial questions of law have been framed.
He has also submitted that on the self same day
the application for stay was taken up and stay
of all further proceedings of the Title Execution
case no. 12/2006 pending in 4th Court of the
learned Civil Judge, (Senior Divn.), 4th Court at
Alipore was passed till the disposal of the
application. He has further stressed upon the
point that at the time of passing of an order of
stay the Hon’ble Division Bench did not pass
any order of occupational charge and there was
no cause for implementation of occupational
charge as at that relevant point of time there
was no application filed by the
respondents/landlords seeking occupational
charge. He has further submitted that just in
the year 2017 after a gap of more than ten years
the application seeking occupational charges
have been preferred on behalf of the
respondents/landlords and further submitted
that the present application is time barred and
occupational charges cannot be imposed as per
the provisions of the Limitation Act. In this
context the learned counsel has placed Section 3
(2) (b) of the Limitation Act, 1963 and also
Article 137 of the said Act. In support of his
4
contention, the learned counsel has relied upon
a judgment passed by Hon’ble three judges
bench of the Hon’ble Apex Court in the case
between the Kerala State Electrcity Board,
Trivandrum Vs. T.P. Kunhali Umma reported in
(1976) 4 SCC 634. Another judgment passed by
the Hon’ble Apex Court in the case between
State of Punjab Vs. Davinder Pal Singh Bhullar
and ors. and Sumedh Singh Saini Vs. Davinder
Pal Singh Bhullar and Ors. published in (2011)
14 SCC 770 has also been relied. Another
judgment passed by the Hon’ble Apex Court in
the case between Sameer Kapoor and anr. Vs.
State through Sub-Division Magistrate South,
New Delhi and ors. reported in (2020) 12 SCC
480 has also been placed. He has also relied
upon a judgment of a single bench of this court
in the case between M/s. P. L. Mullick & Co.
Vs. Khaitan Consultation Ltd. and ors. He has
further submitted that the landlords have not
provided any basis on which the occupational
charges can be assessed.
Relying upon the aforementioned judgment
the learned counsel has prayed for dismissal of
the said prayer for occupational charges.
Mr. Ashok Banerjee, learned senior counsel
representing the respondent/landlord during
his exhaustive submission has submitted that
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the tenant is enjoying the property and stay of
operation of the execution proceedings without
paying any occupational charges. He has
stressed upon the point that in spite of the
judgment of eviction passed by the First
Appellate Court during the year 2006 the
tenants are residing in the suit property that is a
self contained flat without paying any
occupational charge. He has further submitted
that as a consequence of stay, occupational
charges are to imposed and the tenant is to pay
the same. He has further submitted that the
landlord is unable to receive the fruits of the
litigation. Per contra to the submission of the
Ld. Counsel representing the tenant/appellant
the Ld. Counsel has submitted that imposition
of occupational charges is a consequence to the
impleading of stay to the execution proceedings.
He has further submitted that the provisions of
the limitation Act does not come into force as
regards to occupational charges when execution
proceeding has been stayed. In support of his
contention he has relied upon the following
judgments:
First of all Ld. Counsel has relied upon the
judgment passed by the Hon’ble Apex Court in
the case between Atma Ram Properties (P) Ltd.
Vs. Federal Motors (P) Ltd. and has relied upon
6Paragraph 7 of the said judgment reported in
(2005) 1 SCC 705, which has dealt with Order
XLI Rule 5 (1) and (3) of the Code of Civil
Procedure. He has further submitted that an
appeal does not operate as a stay of proceedings
under a decree or order appealed from except for
as the appellate court may order. He has
further submitted that no order of stay of
execution shall be made unless the Court
making it is satisfied that substantial loss may
result to the party applying for stay of execution
unless the order is made and that security had
been given by the applicant for due performance
of such decree or order as may ultimately be
binding upon him.
He has also relied upon another judgment
passed by the Hon’ble Apex Court in the case
between Anderson Wright and Company Vs.
Amar Nath Roy and ors. published in AIR 2005
SC 2457. Relying upon the said judgment the
Ld. Senior counsel has submitted that an order
of stay is subject to payment of compensation
for use and occupation.
He has also relied upon another judgment
passed by the Hon’ble Apex Court in the case
between the State of Rajasthan and Ganeshi Lal
published in AIR 2008 SC 690.
He has further relied upon another judgment
7
of the Hon’ble Apex Court in the case between
Bijay Kumar Manish Kumar (HUF) Vs. Ashwin
Bhanulal Desai published in (2024) 8 SCC 668.
He has stressed upon the point to ensure
complete justice inter se the parties deposit
has to be made.
He has further submitted that through the
said judgment the Hon’ble Apex Court has
opined that it cannot be lost sight of the fact
that the very purpose for which the property is
rented out is to ensure that the landlord by way
of the property is able to secure some income.
He has also relied upon few judgments of this
Court. Among those are a judgment of the
Division Bench passed in the case between
Debonair Vanijaya Pvt. Ltd. Vs. Esrat Jahan @
Ishrat Jahan and another reported in (2024)
SCC Online Calcutta 1178. In this case relying
upon Atma Ram Properties Pvt. Ltd (supra) the
court has imposed money as mesne profit. In
the said judgment it has been stated that the
question of awarding interim mesne profit comes
when the defendant occupying the suit premises
has no defence to contest the case. He has also
relied upon three judgments passed by Hon’ble
Single Bench of this Court reported in 2012 (1)
CHN (CAL) 247, 2015 (4) ICC 17 (CAL) and 2017
(2) ICC 632 (CAL). Relying upon the
8
aforementioned facts and circumstances the
Ld. Senior Counsel representing the landlord
has submitted that occupational charges is to be
imposed while granting stay.
From the contentions of the learned counsels
it transpires that there are two issues which are
to be dealt with.
First issue is as to whether the occupational
charges claimed by the landlord is barred by
limitation or not.
Second issue is as to how much quantum of
money is receivable by the landlord and payable
by the tenant as regards to occupational
charges.
As regards to the occupational charges it has
been settled by the Hon’ble Apex Court through
the judgment passed in the case between Atma
Ram Properties (P) Ltd. Vs. Federal Motors (P)
Ltd. published in (2005) 1 SCC 705. In
Paragraph 9 of the said judgment it has been
laid down that “The power to grant stay is
discretionary and flows from the jurisdiction
conferred on an appellate court which is equitable
in nature. To secure an order of stay merely by
preferring an appeal is not a statutory right
conferred on the appellant. So also, an appellate
court is not ordained to grant an order of stay
merely because an appeal has been preferred
9
and an application for an order of stay has been
made. Therefore, an applicant for order of stay
must do equity for seeking equity. Depending on
the facts and circumstances of a given case, an
appellate court, while passing an order of stay,
may put the parties on such terms the
enforcement whereof would satisfy the demand
for justice of the party found successful at the
end of the appeal.”
In Paragraph 19 of the said judgment
following has been laid down :
“(1) While passing an order of stay under Rule
5 of Order 41 of the Code of Civil Procedure,
1908, the appellate court does have jurisdiction to
put the applicant on such reasonable terms as
would in its opinion reasonably compensate the
decree-holder for loss occasioned by delay in
execution of decree by the grant of stay order, in
the event of the appeal being dismissed and
insofar as those proceedings are concerned. Such
terms, needless to say, shall be reasonable.
(2) In case of premises governed by the
provisions of the Delhi Rent Control Act, 1958, in
view of the definition of tenant contained in
clause (l) of Section 2 of the Act, the tenancy does
not stand terminated merely by its termination
under the general law; it terminates with the
passing of the decree for eviction. With effect from
10that date, the tenant is liable to pay mesne profits
or compensation for use and occupation of the
premises at the same rate at which the landlord
would have been able to let out the premises and
earn rent if the tenant would have vacated the
premises. The landlord is not bound by the
contractual rate of rent effective for the period
preceding the date of the decree.
(3) The doctrine of merger does not have the
effect of postponing the date of termination of
tenancy merely because the decree of eviction
stands merged in the decree passed by the
superior forum at a latter date.”
Thus, from the aforementioned authority it
transpires that tenancy terminates with the
passing of the decree for eviction and with effect
from that date the tenant is liable to pay mesne
profits or compensation for use and occupation
of the premises at the same rate at which the
landlord would have been able to let out the
premises and earn rent if the tenant would have
vacated the premises.
From the judgment passed in Atma Ram
Properties (P) Ltd. (supra) it is crystal clear that
order of stay under Order XLI Rule 5 of the Code
of Civil Procedure, 1908 and implementation of
mesne profit or compensation or occupational
charge in respect of the suit property go hand in
11
hand and these two are intermingled and
cannot be separated from the other. So a Court
cannot pass an order of stay without passing an
order for occupational charge. A Court has to
provide equity to the parties and to give effect to
the same an order of stay subject to
occupational charges is required to be passed so
that neither the landlord nor the tenant is
deprived of equity. Court has to see that neither
of the parties get prejudiced and to give effect
to that the occupational charges which is to be
imposed has also to be in accordance with the
situation of the suit property.
The occupational charge which has been
sought for by the landlord which is under
challenge by the appellant being barred under
the law of limitation has been filed by the
landlord as compensation for use and
occupation of the premises by the appellant in
spite of having an order of eviction against the
appellant. The appellant has preferred an
application seeking stay of execution
proceedings, which is under Order XLI Rule 5 of
the Code of Civil Procedure, 1908 and in
Paragraph 19 (1) of the said judgment the
Hon’ble Apex Court has been pleased to state
that while passing an order of stay under Order
XLI Rule 5 (2) and (3) of the said Code the
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appellate Court does have jurisdiction to put the
applicant on such reasonable terms as would in
its opinion reasonably compensate the decree
holder for loss occasioned by delay in execution
of decree by the grant of stay order, in the event
of the appeal being dismissed and insofar as
those proceedings are concerned such terms
shall be reasonable. So the question of limitation
does not come into effect.
The judgment passed by the Hon’ble Apex
court in the case between the Kerala State
Electricity Board, Trivandram Vs. T.P.
Kunhaliumma published in (1976) 4 SCC 634
has dealt with Article 137 of the Limitation Act,
1963. Article 137 of the Limitation Act has laid
down that for any other application for which no
period of limitation is provided elsewhere in this
division the period of limitation is three years
from the time when the right to apply accrues.
So this judgment does not apply in this present
situation.
The other judgment cited been passed by the
Hon’ble Apex Court in the case between State of
Punjab Vs. Davinder Pal Singh Bhullar and Ors.
with Sumedh Singh Saini Vs. Davinder Pal
Singh Bhullar and Ors. reported in (2011) 14
SCC 770 has been passed in a criminal
proceeding. In the said judgment waiver of right
13
has been dealt with but in the present case
there has not been any waiver or right by the
landlord. So this judgment is not at all
applicable in this present lis.
The third judgment referred to by the
appellant is the judgment published in (2020)
12 SCC 480 passed in the case between Sameer
Kapoor and another Vs. State through
Sub-Divisional Magistrate South, New Delhi and
Ors. This citation is also not applicable as it
deals with succession proceeding. The said
judgment is not at all applicable in the present
case.
Lastly a judgment passed by a Ld. Single
Judge of this Court in the case between M/s. P.L
Mallick and Company Vs. Khaitan Consultation
Ltd. and Ors. which has been cited is also not
applicable as because in the said case
modification of an order of occupational charge
passed by a Hon’ble Division Bench had been
sought for which has been dismissed by the
learned Single Judge. The said judgment is also
not at all attracted in the present lis.
Thus from the aforementioned discussion it is
clear that the issue of limitation is not attracted
herein as regards to implementation of
occupational charge
14
Now as regards to the quantum of
occupational charge. From the schedule set out
in the decree that is the description of the suit
property it transpires that it is one self
contained flat in the ground floor of the premises
No.12-B Indra Roy Road, PS- Bhawanipur,
Calcutta-700025 comprising of three rooms
together with one kitchen one bath-cum-privy
and one verandah. In support of his contention
the landlord has furnished a tenancy agreement
dated 18.08.2014 in respect flat No.1 situated in
the ground floor at 12-B, Indra Roy Road,
Kolkata -700025, revealing the rent to be Rs.
14,000/- but nowhere in the said agreement the
area/extent of tenancy has been mentioned.
Through the said application for
occupational charge the landlord has sought for
RS. 21,000/-, per month and has mentioned
that the flat in question is measuring about 600
sq. ft. In response to the contentions of the
landlord the appellants have provided photocopy
of challans revealing deposition of rent of Rs.
207/- per month in respect of a ground floor flat
consisting of two bed rooms, one kitchen, one
verandah, one bath and privy and one store
room of the same building that is 12-B Indra
Roy Road and has also furnished two rent
receipts in respect of one tenancy comprising of
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one room , kitchen and common verandah privy
in the ground floor of the premises No.7/B Indra
Roy Road, Kolkata -700025, wherefrom it
reveals that monthly rent is Rs. 1200/- per
month during the year 2023.
Taking into consideration all the documents
furnished by both the parties including the
photocopy of the rent receipts and also
considering the locality, number of rooms,
separate usage of amenities such as bath and
verandah this Court is of the view that Rs.
8000/- per month as occupational charge is
justiceable and will not prejudice either of the
parties.
Accordingly I.A. No. CAN 1 of 2006 (old
CAN NO. 6410 of 2006) being an application
filed by the appellants seeking stay of operation
of judgment and decree passed in Title Appeal
No. 233 of 2003 and Title Execution case No. 12
of 2006 and the interim application No. CAN 2
of 2017 (Old CAN No. 7644 of 2017) filed by
the respondents for payment of occupational
charges are disposed of without any order as to
costs, by granting stay of operation of impugned
decree and execution proceeding till disposal of
the appeal on condition that the appellants
shall pay to the respondents Rs. 8000/- per
month as occupation charge.
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The first of the current payment for the
month of February, 2026 shall be made by 28th
of February, 2026 and thereafter the current
payment of occupation charge for each month
shall be made by the last day of the said month.
The arrears of occupation charge at the same
rate that is Rs. 8000/- per month from the
month of the impugned decree till January,
2026 shall be paid to the respondents by the
appellants in six equal monthly installments
(rounded of to the nearest whole number), the
first of which shall be paid by the 15th day of
March 2026 and thereafter within the 15th day
of each succeeding month till the entire arrear
is cleared of.
In default of any of the above payments, the
stay order shall stand automatically vacated
without further reference to the Court.
All such payments shall be made by online
transfers to the account of the respondents, the
particulars of which shall be communicated in
writing to the Ld. Advocate on record for the
appellants by the Ld. Advocate on record for the
respondents within 20th February, 2026.
Trial Court record and First Appellate Court
record be called for. On arrival of both the
records and if both the records are found to be
in order the learned counsel representing the
17
appellants is to be intimated.
Requisite number of informal paper books are
required to be prepared within 4 (four) weeks
from the date of intimation to the learned
counsel by the department.
After all the formalities being completed the
parties are at liberty to mention.
(Supratim Bhattacharya, J.)
