Calcutta High Court
Amit Newar And Anr vs Mohammed Islam on 11 June, 2025
OCD-19
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
EC-COM/156/2025
AMIT NEWAR AND ANR.
VS
MOHAMMED ISLAM
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : 11th June, 2025.
Appearance:
Mr. Krishnaraj Thaker, Sr. Adv.
Mr. Kanishk Kejriwal, Adv.
Ms. Brinda Sengupta, Adv.
Mr. Ramendu Agarwal, Adv.
...for the decree holder
Mr. Arik Banerjee, Adv.
Mr. Arijit Dey, Adv.
Mr. S. Chakarborty, Adv.
...for the judgement debtor
1.
Mr. Krishnaraj Thaker, learned Senior Counsel, is appearing for
the decree holder.
2. Mr. Arik Banerjee, learned Counsel, is appearing for the
judgment debtor.
3. The decree holder has filed the present execution proceeding for
execution of the order passed by this Court dated 24th January, 2025
wherein the defendant was directed to deposit the monthly occupational
charges of Rs.1,09,250/- per month from the month of December 2019
till the month of January, 2025 and also to continue to deposit monthly
occupational charges with the Registrar, Original Side of this Court
within two weeks from the date of the order.
4. The judgment debtor has preferred an appeal against the order
dated 24th January, 2025 and the Hon’ble Appellate Court has
dismissed the appeal and affirmed the order passed by this Court.
2
5. Counsel for the judgment debtor has raised preliminary
objection that the execution proceeding initiated by the decree holder is
not maintainable as this Court has disposed of an interlocutory
application being GA/1/2021 by an order dated 24th January, 2025 by
directing the defendant to pay the above mentioned amount and as
such, it cannot be said to be a decree. Thus, the execution proceeding
filed by the plaintiff is not maintainable.
6. The judgment debtor has also raised the objection by stating
that the decree holder has prayed for appointment of Receiver for the
purpose of making inventory and also for management of the business
of the judgment debtor and other reliefs which amounts to final relief of
the suit and as such, if this Court will allow the execution proceeding,
the judgment debtor will be prejudiced and the same will amount to
final judgment of the suit.
7. Counsel for the decree holder has relied upon Section 36 of the
Code of Civil Procedure and submits that execution of decree is also
applicable to the execution of orders including payment under an order.
8. Learned Counsel for the decree holder has relied upon the
judgment in the case of Sheela Jerald and Ors. Vs. Pushpadasan
reported in 2018 (4) KHC 402 wherein the Hon’ble Supreme Court has
held that the order passed validly by a competent Court must be
capable of execution if it has to have any meaning for the parties in
litigation.
9. Learned Counsel for the decree holder has also relied upon the
judgment in the case of Kavita Chaudhri Vs. Eveneet Singh & Anr.
Reported in 2012(130) DRJ 83 wherein the Delhi High Court has held
that the word execution means execution of decree or orders by process
3
of court so as to enable the decree holder to reap fruits of the judgment
and/or decree passed by the court in his favour, it cannot be said that
the word execution is relevant only so far as the execution of the decree
is concerned.
10. Learned Counsel for judgment debtor without prejudice to his
rights and contentions has submitted on instruction that judgment
debtor is ready to pay the current occupational charges as directed by
this Court along with the arrears of extra one month occupational
charges till the realization of total arrears and he will continue pay the
said occupational charges in terms of the order passed by this Court.
11. Heard learned Counsel for the respective parties. Perused the
materials on record.
12. This Court finds that by an order dated 24th January, 2025, on
the basis of the admission made by the defendant, has directed the
defendant to pay the occupational charges at the rate of Rs.1,09,250/-
per month from the month of December, 2019 till month of January,
2025 and also to continue to deposit the monthly occupational charges
with the Registrar, Original Side of this Court within two weeks from the
date of the order.
13. In terms of the order dated 24th January, 2025, decree has been
drawn. After the decree, the plaintiff has filed the instant execution
proceeding.
14. Section 36 of the Code of Civil Procedure reads as follows:
[36. Application to orders.-The provisions of this Code relating
to the execution of decrees(including provisions relating to
payment under a decree) shall, so far as they are applicable,
4be deemed to apply to the execution of orders (including
payment under an order].
15. The Hon’ble Supreme Court in the case of Sheela Jerald and
Ors (Supra) has held that Section 36 of the Code the provisions relating
to the execution of the decree are applicable to the execution of the
orders. Delhi High Court has also held that it cannot be said that the
word execution is relevant only for the execution of decree.
16. This Court by an order dated 24.01.2025 directed the judgment
debtor to pay the occupational charges of Rs.1,09,250/- per month
from the month of December, 2019 till January, 2025 and also to
continue to deposit the monthly occupational charges with the Registrar
of this Court. The defendant failed to comply with the order passed by
this Court even the order is upheld by the Hon’ble Appellate Court.
Hence the plaintiff has filed the present execution case for execution of
the order dated 24.01.2025.
17. Considering the above, this Court finds that the execution
petition filed by the decree holder is maintainable.
18. Now, with regard to the question raised by the judgement debtor
that the prayer made in the execution proceeding will amount to final
decree in the suit. The decree-holder has filed the present case for
recovery of an amount in terms of the order dated 24th January, 2025.
At the end of the argument the judgement debtor has submitted
without prejudice to his rights and contentions that the judgement
debtor is ready to pay the current occupational charges along with the
arrears month by month.
19. Though the notice of the execution proceeding has been issued
to the defendant and the defendant is appearing before passing any
5
order as prayed for by the decree holder in the instant execution
proceeding. This Court is of the view that the judgement debtor should
be given an opportunity to file the affidavit of asset and only after the
filing of the affidavit of asset this Court can ascertain whether the
receiver is to be appointed for attachment of the properties of the
judgement debtor or whether the affidavit of asset which the judgement
debtor has disclosed, from that affidavit of asset the attachment can be
made for realization of the said amount.
20. In view of the above, this Court finds that the apprehension of
the judgement debtor that by allowing the execution petition will
amount to final disposal of the suit is not sustainable.
21. Accordingly, the judgement debtor is directed to file the affidavit
of asset within a period of 10 days and also to give an undertaking that
the judgement debtor is ready to make the current occupational charges
as well as arrears as directed by this Court month by month.
22. Let the affidavit of asset and the undertaking be filed by 23rd
June, 2025 after serving the copy to the decree holder.
23. List the matter on 25th June, 2025.
(KRISHNA RAO, J.)
Sbghosh/S.De
[ad_1]
Source link