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Judgment
Shampa Sarkar, J
The Court: GA No.803 of 2020 is an application filed by the decree holder for non-prosecution of the Execution Case no.302 of 2019 arising out of a judgment and decree dated July 26, 2017 passed in CS No.115 of 2013, in view of settlement arrived at by and between the parties.
It is the contention of the petitioner/decree holder that in this eviction suit, the petitioner/decree holder had already been recovered the possession of the property in question. As the mesne profits were due and payable as per the decree, the decree was put into execution.
A learned Advocate of this Court was appointed as a Special Referee to calculate the mesne profits payable. It is recorded that such calculation was made and the report to that extent was filed by the learned Special Referee before the learned Court and the same was finally accepted. Both parties submit that the learned Special Referee was discharged.
It is now prayed by way of this application, that as the decree holder has already got possession of the property in question and a compromise has been entered into by way of a memorandum of understanding between the parties i.e. the decree holder and the judgement debtor on March 16, 2020 regarding payment of the mesne profits, the decree holder does not want to proceed with the execution case. Mr. Roy, who appears in person, as the Chief Financial Officer of the judgment debtor/company submits that the authorisation granted to him to so appear by the resolution dated 1st April, 2020 passed by the Board of Directors of the judgment debtor/company has already been sent by email. Office is directed to tag the same with the records. The authorisation was displayed on the screen. It is further submitted on behalf the judgement debtor, Rs.80 lakh has been agreed to be paid to the decree holder as mesne profits as per the memorandum of understanding, to be payable to the decree holder. Cheques amounting to Rs.29 lakh had already been paid. The learned Advocate for the decree holder acknowledges the receipt of the amount. The judgment debtor further submits that for the rest of the amount, post dated cheques have been issued in favour of the decree holder and the decree holder would be at liberty to encash the same. The learned Advocate for the decree holder also accepts such contention and submits that in view of having received the cheques in the above mentioned manner and as per the memorandum of understanding dated March 16, 2020, they do not want to proceed with the execution case, being EC 302 of 2019.
In view of the above submissions made by the respective parties, this application being GA No.803 of 2020 is allowed. EC No.302 of 2019 is dismissed for non-prosecution.
However, dismissal of EC 302 of 2019 will not prevent the decree holder from approaching the appropriate forum in case of dishonour of cheques at the subsequent stages and/or violation of Clause 3 of the memorandum of understanding.
The petitioners/decree holders are directed to regularise the application within 48 hours from resumption of normal functioning of the Court.