A.1275-1276 21.08.2026 Court No.6 BP C.O. 362 of 2026 Sri Dhiren Mondal -versus- Sri Subrata Sardar and C.O. 363 of 2026 Sri Samar Dolui -versus- Sri Subrata Sardar Mr. Satyendra Agarwal Mr. Bijoy Bag Mr. Animesh Pal Mr. Gaurav Mathur ..for the petitioner Mr. Debjit Mukherjee Mr. Kaustav Bhattacharya Ms. Priyanka Jana ..for the opposite party These applications under Article 227 of the Constitution of India are at the instance of the defendant/appellant in Title Appeal No. 78 of 2024 and Title Appeal No. 79 of 2024 and are directed against the orders being no.13 dated 3rd January, 2026 both passed by the learned Additional District Judge, 2nd Court at Howrah in the aforesaid appeals. By the said order the operation of the judgement and decree passed by the learned trial judge was stayed subject to payment of occupation charges. The learned advocate appearing for the petitioner submits that the suit property is a tile shed room and is situated in a remote area. He submits that the learned 2 judge of the appellate court fixed an occupation charges at a rate which is an excessive one. He further submits that the occupation charges has been fixed without any basis as no document was placed before the appellate court for the purpose of assessment of such occupation charges. In support of such contention the learned advocate appearing for the petitioner places reliance upon the judgement of Hon’ble Supreme Court in Niyaz Ahmad Khan vs. Mahmood Rahamat Ullah Khan and others reported at (2008) 7SCC 539 and a decision of the Co- ordinate Bench in the case of Badal Chandra Ghorai vs. Prabir Kumar Maity reported at 2024(4) ICC 353. Mr. Mukherjee, learned advocate appears for the opposite party. He submits that the learned judge of the appellate court after taking into consideration the materials produced by the opposite party herein before the learned judge of the appellate court and considering the locality where the decreetal property is situated fixed the rate of occupation charges. In support of his contention that occupation charged has to be imposed as a condition of stay he places reliance upon the decisions of the Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported at (2005) 1 SCC 705. The opposite party herein filed a suit for eviction and recovery of khas possession upon revocation of licence. Such suit was decreed in favour of the opposite 3 parties by a judgement and decree dated April 26, 2024. Challenging the judgement and decree passed by the learned trial judge, the petitioner preferred an appeal being Title Appeal No. 78 of 2024. The learned judge of the appellate court passed an order of stay of operation of the judgement and decree passed by the learned trial judge subject to payment of occupation charges at the rate of Rs. 5,000/- per month with effect from the date of filing of the stay application. In the written objection to the stay application it is the specific case of the opposite party that the decreetal property is situated at a well-known locality at Howrah which has a mixed occupancy i.e. commercial and residential and the same is situated near the railway station, market, school, college, main road etc. The statements made in the said written objection has not been controverted by the petitioner by filing any affidavit thereto. Mr. Mukherjee, learned advocate appearing for the opposite party would contend that in course of hearing of the stay application the opposite party produced a document showing the valuation of the property in question. After going through the impugned order this Court finds that the learned judge of the appellate court took into consideration the document wherein the valuation of the property in question was mentioned and after taking 4 note of the fact that the suit property is situated at a prime location at Howrah fixed an occupation charge of Rs. 5,000/- per month. It is not in dispute that no materials have been produced by the petitioner herein either before the learned judge of the appellate court or before this Court for the purpose of assessment of the rate of occupation charges for the decreetal property. Considering the location and the extent of the decreetal property this Court is of the considered view that the occupation charges fixed by the learned judge of the appellate court is a reasonable amount and does not call for any interference under Article 227 of the Constitution of India. The Hon’ble Supreme Court in Niyaz Ahmad Khan (supra) in paragraph 8 of the said reports has specifically stated that when a tenant files the writ petition challenging the order of eviction, the High Court may reject the writ petition if it finds no merit in the case of the tenant or in some cases the High Court may admit the writ petition but refuse to grant stay of execution, in which event, the tenant may be evicted, but can claim restoration of possession if he ultimately succeeds in the writ petition or in some cases the High Court finding the case fit for admission, may grant stay of eviction, with or without conditions, so that status quo is maintained till the matter is decided. 5 The Hon’ble Supreme Court in Atma Ram Properties (P) Ltd. (supra) held that while passing an order of stay under Order 41 Rule 5 of the Code of Civil Procedure the appellate court does have the jurisdiction to put the applicant on such reasonable terms as would it its opinion reasonably compensate the decree holder for loss occasioned by the 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. The appellate court after considering the location of the property and the documents produced by the opposite party fixed the rate of occupation charges. This Court is not inclined to interfere with the exercise of discretion by the appellate court sitting under Article 227 of the Constitution of India. Ordinarily while passing an order of stay, the occupation charges are directed to be paid with effect from the passing of the decree by the learned trial judge. However, in the case on hand, this Court finds that the learned judge of the appellate court has directed payment of occupation charges with effect from the filing of the stay application. Since the opposite party has not challenged the said order this Court is not inclined to interfere with that portion of the order. 6 Considering the fact that the hearing of the appeal has been fixed on 11th September, 2026, the learned Additional District Judge, 2nd Court at Howrah is requested to make an endeavour to dispose of the appeal as expeditiously as possible but preferably by the end of the month of December, 2026 without granting any unnecessary adjournments to either of the parties. In Badal Chandra Ghorai (supra) the co-ordinate bench held that the principles of imposing condition by directing payment of occupational charges may not apply in case of stay of execution of an ex parte decree pending disposal of an application under Order 9 Rule 13 of the Code of Civil Procedure. The said decision being distinguishable on facts cannot come to the aid of the petitioner. C.O. 362 of 2026 and C.O. 363 of 2026 stand dismissed. There shall be, however, no order as to costs. Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities. (Hiranmay Bhattacharyya, J.)