S. K. SEN, J. ( 1 ) THE appeals and the applications both are taken up for hearing. The appeal is directed against the judgment and order of the learned single Judge dated 23rd March, 2000 whereby the learned single Judge in the application for execution appointed Receiver for realisation of commercial charges and consolidated rates and taxes in terms of prayer (e) of column 10 of the Tabular Statement. It appears that an order was passed on February 9, 2000 wherein it has been recorded in terms of an order dated May 18, 1999 the judgment debtor did not pay any installment and in that view the decree dated October 13, 1982 had became executable. The second order dated February 9, 2000 has not been challenged by the judgment debtor in any proceeding. The application was made by the Tabular Statement before the learned single Judge for execution of the said decree dated October 13, 1982. It may be noted that the said decree was passed by consent of the parties and the parties filed their Terms of Settlement in the Court on the basis of which the said consent decree was made. The decree was subsequently modified again by consent of the parties by an order dated April 26, 1990 and subsequently the decree had been transferred by the then decree holder in favour of the applicant/respondent for execution proceeding. The execution proceedings were related to recovery of immovable property and money on account of rates, taxes and commercial surcharge levied by the Municipal Corporation of Calcutta. An order had been made in terms of prayer (b) of the Tabular Statement on the earlier occasion and also in terms of prayer (f) as recorded in the order dated February 9, 2000. By another order dated 30th March 2000, section 47 applications was rejected. ( 2 ) THE contention of the appellant is that the learned Judge was incorrect in passing an order directing execution by way of appointment of Receiver since the commercial surcharge is not payable according to Calcutta Municipal Corporation Act, 1980 and the consolidated rates and taxes is determined by the Calcutta Municipal Corporation. ( 2 ) THE contention of the appellant is that the learned Judge was incorrect in passing an order directing execution by way of appointment of Receiver since the commercial surcharge is not payable according to Calcutta Municipal Corporation Act, 1980 and the consolidated rates and taxes is determined by the Calcutta Municipal Corporation. Clause (vii) of the consent decree provides as follows: -"the Defendant further undertakes and agrees to punctually and regularly pay Commercial Surcharge on consolidated rates @ 50% of the amount of Corporation tax or at such rate as Municipal Corporation of Calcutta may determine as and when the same is determined and becomes payable and the defendant shall keep the plaintiff or person claiming through the plaintiff fully discharged and indemnified. " ( 3 ) MR. Sen, learned Advocate for the appellant, has strangely contended that since no rate bill has been produced, nothing has been shown to show the rate as determined by the Municipal Corporation of Calcutta. There is no question of paying any amount by the appellant by way of surcharge. The contention of Mr. Sen is that the Calcutta Municipal Corporation Act, 1980 envisages one consolidated rate bill payable by the owner, which is recoverable by the owner from the occupier. Clause-7 of the Terms of Settlement of the consent decree as mentioned hereinbefore, in fact, is inconsonance with the said Statute. The said clause provides "the defendant shall keep the plaintiff or person claiming through the plaintiff fully discharged and indemnified". He has further submitted that when the parties have entered into such agreement, consent decree is nothing but an agreement between the parties. When there is a decree incorporating agreement in the Terms of Settlement, it is implied that they have acted in consonance with the Statute. The learned Judge without considering the fact what is due and payable by way of consolidated rates and taxes as not having been substantiated before the Court ought not to have directed execution by way of realisation by appointment of Receiver. Mr. Sen has further submitted that this aspect of the matter which is purely question of law has not been considered by the learned single Judge at all. Mr. Sen has further submitted that this aspect of the matter which is purely question of law has not been considered by the learned single Judge at all. He has further argued that the previous order of Sujit Kumar Sinha, J (as he then was) dated 10th March 1999 as well as the order of the Division Bench which heard the appeal against the said order also did not consider the same. It is, therefore, open for the appellant to urge the said point at this stage. The next argument of Mr. Sen is that the execution application was disposed of while section 47-application was pending. ( 4 ) MR. Sen has further submitted that since the question of law as recorded hereinbefore is well-settled, the order of the Division Bench of Satya Brata Sinha, ACJ and S. N. Bhattacharjee, J is really per inqurium and cannot have any binding effect and the question of applying the principle of resjudicata or constructive resjudicata does not apply. In support of his contention, he has relied upon several decisions of this Court. ( 5 ) THE contention of the learned Advocate for the respondents, on the other hand, is that there is no dispute with regard to the amount payable and the appellant has, in fact, paid the amount all along and the questions of legal niceties raised in this proceeding were also considered by the earlier Division Bench by its order dated 18th May, 1999. The appellant went up to challenge the said order in the Supreme Court by way of a Special Leave Petition. He has also referred to the letter dated 10th December 1999, which is set out herein below:"m/s. Candlewood Holdings Limited, 24, Park Street, calcutta-700 016. Dear Sir, sub: Payment of Rent for the month of October 99 without prejudice. Enclosed please find the four Manager's Cheque No. 056083, 056084, 056085 and 056086-dated 09-12-99 payable at UCO Bank, Free School Street Branch for Rs. 1,53,182/- on account of Rent Payable for October, 1999. The amount in the cheque is arrived as below. Rent Rs. 1,26,943. 50 Corporation Tax Rs. 46,270. 84 Commercial Surcharge @ 50% of Corpn. Tax Rs. 23,135. 44 Rs. 1,96,349. 78 Less: 1. Tax 20% on Rs. 1,26,943. 50 Rs. 25,389 2. Surcharge 10% on I. Tax Rs. 2,539 Rs. 27,928. 00 Rs. 1,68,421. The amount in the cheque is arrived as below. Rent Rs. 1,26,943. 50 Corporation Tax Rs. 46,270. 84 Commercial Surcharge @ 50% of Corpn. Tax Rs. 23,135. 44 Rs. 1,96,349. 78 Less: 1. Tax 20% on Rs. 1,26,943. 50 Rs. 25,389 2. Surcharge 10% on I. Tax Rs. 2,539 Rs. 27,928. 00 Rs. 1,68,421. 78 Less: Arrear I. Tax & Surcharge: Actual I. Tax & Surcharge: Since April 99 to Sept 99 ? Rs. 1,67,568 Less: Deducted during earlier Said months Rs. 1,52,328 Net Amount Rs. 1,53,181. 78 Rs. 15,240. 00 With best regards. Yours faithfully, for THE LAGAN JUTE MACHINERY COMPANY LIMITED sd/- B. B. Chakraborty supervisor- (Cashier)Encl: As above. ( 6 ) THE learned Advocate for the respondents has also referred to the chart annexed to the stay petition showing the amount due and payment made from time to time. The learned Advocate for the respondents has also relied upon the judgment and decision in the case of Sisir Kumar Dutt v. The State of West Bengal reported in AIR 1953 SC 65 at page 70 as also the decision in the case of Smt. Kamalabai and Ors. v. Mangilal Dulichand Mantri reported in AIR 1988 SC 375 at page 384 (paragraphs 28 and 29 ). ( 7 ) WE have considered the respective submissions of the learned Advocates for the parties. It appears that the claim can be divided into two parts. Once part of the claim is from 1976 up to 1984, when the new Act came into force, and, the second portion of the claim is subsequent to coming into operation of 1984, Act. So far as the first portion is concerned, there was practically no argument on behalf of the appellant when called up to explain what could be the contention of the appellant for non-payment of the dues prior to coming into operation of 1984 Act. ( 8 ) MR. Das Adhikary, learned Advocate for the appellant, has submitted that under the law prevalent at the material time, the rate bill should have been presented to the occupier for payment and since such presentation was not made, the question of non-payment does not arise. ( 9 ) WE are, however, unable to accept the said contention of Mr. Das Adhikary. Das Adhikary, learned Advocate for the appellant, has submitted that under the law prevalent at the material time, the rate bill should have been presented to the occupier for payment and since such presentation was not made, the question of non-payment does not arise. ( 9 ) WE are, however, unable to accept the said contention of Mr. Das Adhikary. The said contention can be a defence for enforcement of cause of action for non-payment of rates and taxes against the Calcutta Municipal Corporation under the previous law, which was in operation. However, in terms of the consent decree, particularly clauses-7 thereof, and pursuant thereto, when the appellant has already made payment, in our view, such contention cannot have any force. Accordingly, we give no importance to such contention and reject the same. ( 10 ) WITH regard to the claim for the subsequent period, that is to say, after 1980-Act came into operation, the contention of the learned Advocate for the appellant is that there is one consolidated rate bill and that amount was not determined and the primary obligation-"owner to pay and thereafter to recover from the appellant" and as such the appellant is not liable, does not also appear to us to be of much substance. It is on record that the appellant all along has made payments in terms of clause-7 on the basis of Terms of Settlement filed in Court on the basis of which the consent decree was passed. There was no dispute with regard to the amount raised at any point of time. ( 11 ) THE learned Advocate for the appellant contended in view of the words under the heading "without prejudice" in the said letter dated December 10, 1999. The said letter will not have any binding effect. It is clear from the said letter, which is already set out hereinbefore that there was no dispute with regard to the amount. "without prejudice", in our view, in the said letter means without prejudice to any other contention that could have been raised by the appellant, Since the appellant was paying the amount all along, there was no reason for the appellant to raise the said dispute. "without prejudice", in our view, in the said letter means without prejudice to any other contention that could have been raised by the appellant, Since the appellant was paying the amount all along, there was no reason for the appellant to raise the said dispute. Be that as it may, the appeal Court by its order dated 18th May 1999 has also considered the said question and, in fact, in the Memorandum of Appeal, the said question was raised in the said appeal and the Division Bench has dealt with the same. After the Special Leave Petition having been withdrawn, the said order reached finality and has become conclusive and is clearly, in our view, resjudicata. ( 12 ) WE are of the view that the decisions in the case of Sisir Kumar Dutta v. The State of West Bengal reported in AIR 1953 SC 65 and the case of Kamlabai and Ors. v. Mangilal Dulichand Mantri reported in AIR 1988 SC 375 apply with full force in the instant case. The question raised before us having been finally decided by another Division Bench of Co-ordinate jurisdiction, there is no reason for us to again decide the said point. ( 13 ) IN view of the reasoning we have already indicated, we do not find any reason to interfere with the order under appeal. The appeal, accordingly, stands dismissed. ( 14 ) IT may, however, be noted that after conclusion of the hearing on 4th May, 2000, we call upon the appellant's Advocate if they are agreeable to pay the amount due and payable by convenient monthly installments. But the learned Advocates could not make any commitment. The appeal, accordingly, fails and is dismissed. There will be no order as to costs. In view of the order passed in the appeals, no further order is required to be passed in the applications. Both the appeals and applications, accordingly, stand disposed of. Let Xerox certified copy of the judgment be made available to the parties, expeditiously, if applied for as per the Rules of this Court. D. P. Kundu, J.-I agree. Later: learned Advocate for the appellant prays for stay of operation of the order, which is declined. All parties are to act on a signed copy of the operative portion of the Judgment on the usual under taking. Appeal dismissed.