JUDGMENT : SUBHENDU SAMANTA, J. 1. This is an application seeking modification variations and/or recalling or order dated 6th April, 2005 passed by the Hon’ble Division Bench in CAN 930 of 2005. In connection with SAT 168 of 2005. 2. Respondent of the second appeal is applicant herein. 3. Brief fact of the matter is that present respondent being plaintiff filed a suit for eviction before the trial court being ejectment suit No. 584 of 1995. The said suit was decreed on 13.02.2003, against such decree, the present appellant being the defendant challenged the said judgment and decree before the 1st Appellate Court. The 1st Appellate Court has affirmed the judgment and decree passed by the Learned Trial court on 12th October 2004. Against the order of 1st appellate court, the instant second appeal has been preferred by the appellant. In connection with the appeal, appellant filed an application being CAN 930 of 2005, praying for stay of further proceeding of execution case initiate by the present respondent. In terms of the prayer of the appellant the division bench of this court vide its order dated 6th April, 2005 disposed of CAN 930 of 2005 with following observations. 4. The suit is for eviction under the provisions of the West Bengal premises Tenancy Act, 1956 which has been decreed by both the courts below. Since the appeal has been admitted for hearing under Order 41, Rule 11 of the Code, we are of the view that execution of the said decree, pending disposal of the above appeal, will invite multiplicity of proceedings. accordingly, we grant stay of all further proceeding of execution Case No. 75 of 2003, pending before the 4th Bench of Small causes court at Calcutta, for a period of six months from date or till the disposal of the appeal whichever is earlier with liberty to apply for extension in the event the appeal is not disposed of within the aforesaid time on the following conditions: i) The defendant-appellant will deposit the arrears of rent, if there be any and all decreetal cost with a period of four weeks with the executing court. ii) The defendant-appellant will go on paying occupation charges at the rate of monthly rental at which it was lastly paid from the month of April, 2005 which shall be deposited by 15th May, 2005 and thereafter for every month, iii) In default of deposit of the amount mentioned under Item no. 1, and current occupation charges for consecutive two months, the interim order shall stand vacated. The hearing of the appeal be expedited. 5. Thereafter, the said interim order was made absolute by an order dated 8th September, 2010 and extended till the disposal of the instant appeal or until further order. 6. It is the contention of the petitioner that the appellant suffered a decree on 11th February, 2003 but continue remain in possession and occupation thereof. This court has directed appellant to pay occupational charges according to the last paid monthly rent. Such order is continued and still in force. It is the further contention of the appellant that the Hon’ble Supreme Court in several judgments has held that if tenants have suffered decree for eviction is liable to pay occupational charges according to the current market rate. He submits that appellant is in possession of 1482 Sq. Ft. of commercial space in a building adjacent to the High Court, Calcutta, commercial value of the property is one of the highest in the city and it is at least Rs.100/- per Sq. Ft. 7. He further submits several documents and copies of agreement to substantiate the fact that the rate of Rs. 100/ per Sq.Ft. in respect of the property in question is justifiable. It is the contention of the petitioner that according to the monthly letting out value i.e. market value would be Rs. 1,48,200 per month, but the appellant is only paying a paltry sum of Rs. 454/ per month. On that score, petitioner filed this application seeking modification and/or variation of the order dated 6th April, 2005, so that the appellant may be directed to pay occupational charges at current market rate. 8. The appellant used affidavit- in- opposition against the application. It is the contention of the appellant that application being CAN 9 of 2025 is not maintainable as it contends no reason to consider. 8. The appellant used affidavit- in- opposition against the application. It is the contention of the appellant that application being CAN 9 of 2025 is not maintainable as it contends no reason to consider. It is the further contention of the appellant that order dated 6th April, 2005 has attained its finality, respondent/ petitioner has not preferred any appeal against the said order and for which prayer for recalling modification of the said order is not maintainable in the eye of law. 9. It is the further contention of the appellant that there is no ground to recall the order. It is the contention of the appellant that an order can only recalled if an order has been passed without serving a party to it, or if an order has been passed ex-party in absence of any party, or if order has been passed by a court having no jurisdiction to pass such order. 10. It is the further contention of the appellant that application being CAN 9 of 2024 is wholly misconceived and barred by limitation. He prayed for rejection of the said application. 11. Mr. Mainak Bose, Learned Senior counsel, on behalf of the petitioner submits that the suit for eviction was filed in the year 1995, decree was passed on 2003. Thereafter a long time has been passed now in the year 2025 there are substantial changes in the rate of rent of the premises in question. He further submits that the object of occupational charges is based on equity. There are no bar upon the court to do equity. He submits that if it appears before the Court that a party suffering more, and is entitled to an equitable right the court must do equity to the party. He submits that the petitioner being the landlord has deprived to get the fruit of the decree which were passed in the year 2003, the appellant is occupying a huge portion of commercial space in a building adjacent to the Hon’ble High Court having area of 1482 per Sq. Ft. by giving a partly rent of Rs. 458/- by such, way the petitioners right to have the proper let out value has been deprived day by day. He further submits that the Division Bench has passed the order in the year 2005, which need be verified in changed circumstances and due to subsequent developments. Ft. by giving a partly rent of Rs. 458/- by such, way the petitioners right to have the proper let out value has been deprived day by day. He further submits that the Division Bench has passed the order in the year 2005, which need be verified in changed circumstances and due to subsequent developments. He further submits there are several materials before the court to justify that the letting out value of the property is not less than 100 per Sq. Ft. and it is reasonable and required to be paid to the petitioner. 12. Mr. Kallol Basu Learned Senior Counsel appearing on behalf of the appellant submits that mesne profit as claimed by the plaintiff/petitioner was not allowed by the Learned Trial Court. Impugned order dated 6th April, 2025 cannot be modified after such a long time, he submits that there must be a point of reference from when the market value was enhanced. He further submits there are no reference in the petition from when marker rent has to be assessed, there are no cause of action stated in the instant application. He further submits that it is conscious relinquishment by the Land lord, he never challenged the view of the Hon’ble Division Bench while granting the occupational charges. It has consciously ordered by the Division Bench that contractual rent has to be paid nor the present market rent. Thus the instant application seeking modification for occupational charges according to the marker rent is cannot be accepted. 13. Mr. Piush Choturvedi, Learned Senior Counsel, appearing on behalf of the appellant submits that the order of eviction was passed on the ground of subletting. He submits that the Hon’ble division Bench while passing the order on 6th April 2005 under order 41, Rule 5 CPC has consciously allowed occupational charges according to the contractual rent. He further submits that present petitioner being the respondent, never challenge that order. The order attained its finality, so the issue of giving occupational charges according to the contracutual rate has been settled. The prayer for modification of the said order is to be treated as res-judicata. He further submits that recalling of an order can only be made if an order is passed without hearing of the parties i.e. ex-party, or the order has been passed upon fraud to the court. The prayer for modification of the said order is to be treated as res-judicata. He further submits that recalling of an order can only be made if an order is passed without hearing of the parties i.e. ex-party, or the order has been passed upon fraud to the court. He submits that the order on 6th April, 2025 was passed in presence of the parties merely through the speaking with the consent of the present petitioner. Thus this conscious relinquishment by the landlord barred the present petitioner to claim enhancement of occupational charges according to the market value. 14. Having heard the Learned Counsels for the parties it appears that the issue has been dealt with by the Hon’ble Supreme Court initially in Atmaram Properties case. In Atmaram Properties Private Limited Vs. Federal Motors Private Limited, (2005) 1 SCC 705 Hon’ble Supreme Court has held that Dispossession, during the pendency of an appeal of a party in possessions generally considered to be substantial toss to the party applying for stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. 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 d appellate court is not ordained to grant an order of stay merely because an appeal has been preferred 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. 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 South Eastern Coalfields Ltd. v. State of M.P.¹ this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the court. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decreetal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the a judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record-all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record-all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corporation: (SCC p. 574, para 35) "Common sense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants." That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property. 15. The same issue was again raised before the Hon’ble Apex Court in another judgment reported in Martin and Harris Private Limited and Anr. Vs. Rajendra R. Mehta and Ors. (2002) 8 SCC 527 The facts unfolded are that the plaintiffs purchased the property through six different registered sale deeds executed on 23-12-1985. By virtue of those sale deeds, the plaintiffs became the owner of the tenanted premises. Vs. Rajendra R. Mehta and Ors. (2002) 8 SCC 527 The facts unfolded are that the plaintiffs purchased the property through six different registered sale deeds executed on 23-12-1985. By virtue of those sale deeds, the plaintiffs became the owner of the tenanted premises. The appellants were tenant to the erstwhile owner and after selling the premises they became tenant of the respondent-plaintiffs by attornment. Earlier a suit under Section 6 of the Old Act was filed by the respondent-plaintiffs against the appellants bearing No. 61 of 2002 for determination of the standard rent. During the pendency of the suit an application under Section 7 of the Old Act was filed for fixing the provisional rent which was decided vide order dated 9-1-2004 fixing provisional rent @ Rs 1,00,000 per month. The said order was challenged, which was confirmed by the High Court vide order dated 18- 4-20075. The appellants had filed a special leave petition bearing No. 9775 of 2007 wherein this Court fixed the ad hoc provisional rent @ Rs 60.000 per month vide order dated 12-11-2007 with direction to the trial court to decide the issue of standard rent expeditiously. The trial court vide judgment dated 12-8-2009 decreed the said suit and fixed the standard rent @ Rs 45,000 per month. The appeals filed by both the parties against the said order are pending before the High Court. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., this Court d held that the appellate court does have jurisdiction to put reasonable terms and conditions as would in its opinion be reasonable to compensate the decree-holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent court, 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 in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have 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 later date. 16. The same issue has again arise before the Hon’ble Supreme Court in Bijay Kr. Manish Kumar HUf Vs. Ashwin Bhanulal Desai, (2004) 8 SCC 688. 17. The proposition of law enumerated in Atmaram Properties Private Ltd. (supra) has been dealt with in Vijay Manish HUf following observation of Atmaram Properties (supra) and Martin Haris Private Limited. The Hon’ble Supreme Court in Vijay Kumar Manish Kumar Huf Vs. Bhanulal Desai has held that:- A perusal of the judgments extracted above as also other cases where Atma Ram Properties one common factor can be observed i.e. the decree of eviction stands passed and the same having been stayed, gives rise to the question of payment of mesne profits. As observed above, the respondent contends that since, in the present case no decree of eviction is passed, and there is no stay awarded, the question of such payment does not arise. While the abovestated position is generally accepted, it is also within the bounds of law, that a tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires. In this regard, we may refer to Indian Oil Corpn. Lid. v. Sudera Realty (P) Ltd. wherein this Court in SCC para 81 observed as under: 81. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits. (Emphasis supplied) Having considered the submissions made across the Bar, we note that the disputed nature of the lease deed, in other words, its continuation or forfeiture on account of non-payment is heavily contested and stemming therefrom, so is the nature of payment to be made. We also note that the location of demised premises is in the heart of Kolkata and if the submissions of the b petitioner are to be believed, they have been deprived of rent for a considerable period of time. Taking a lock stock and barrel view of the present dispute, the averments and the documents placed before us, we may record a prima facie view, that the respondent tenant has for the reasons yet undemonstrated, been delaying the payment of rent and/or other dues, payable to the petitioner applicant landlord. This denial of monetary benefits accruing from the property, when viewed in terms of the unchallenged market report forming part of the record is undoubtedly substantial and as such, subject to just exceptions, we pass this order for deposit of the amount claimed by the petitioner applicant, to ensure complete justice inter se the parties. 18. After thorough perusal of the proposition of law as discussed by the Hon’ble Apex Court in the above mentioned judgment, it appears that in Atmaram Properties case the Hon’ble Supreme Court has clearly laid down the law that Appellate Court is not ordinarily to grant of order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an application for order of stay must do the equity for seeking equity depending on facts and circumstances of the case while passing an order made to be an operative of such premises the enforcement whereof would to satisfy the demand for justice of the party have been successfully in the end of appeal. Thus in the Atmaram Properties case the Hon’ble Supreme Court has put a justification upon the appellate court to pass an order of occupational charges. 19. Thus in the Atmaram Properties case the Hon’ble Supreme Court has put a justification upon the appellate court to pass an order of occupational charges. 19. In Vijay Kr. Manish (Supra) the issue was otherwise applicant land lord through an intervention application seeks direction for payment of monthly occupational charges following prevalent market rate. It was alleged that respondent tenant had been in default of payment of rent since 2002, and in default on payment of his share of Municipal Tax since, 1996, on account of non payment of rent lease was forfeited. However, the tenant neither delivered possession of property nor paid any rent. In the said case it was the issue before the Hon’ble Apex Court that whether a direction be made upon the tenant to pay land lord the occupational charges at the prevalent market rate, on deciding the issue of Hon’ble Supreme Court has set out some factors. In paragraph 33 of the said judgment necessary direction was given to the a tenant for pay of occupational charges according to prevalent marker rate assets and fixed between the parties. 20. So deciding present issue herein it appears that in the suit for eviction the trial court has denied mesne profit. It appears that in the order dated 6th of April 2005 the Hon’ble Division Bench has directed the appellant to go on paying occupational charges at the monthly contractual rate, at which it was lastly paid for the month of April 2005. 21. In considering the issue of modification of the order it appears that of the order dated 06th April, 2025 was passed in presence of the parties. 22. The respondent plaintiff was conscious about the order passed by the Division Bench. Though that the order was passed in the year 2005 now we have already completed 20 years. 23. It is also admitted that the market value of the property has been enhanced considerably since then. But whether the equity as claimed by the petitioner can be entertained at the present facts and circumstances in this case? It is true that the petitioner is only receiving Rs 454/- per month but at the same time, whether by the power of modifying order i.e. rate of monthly rental at which it was lastly paid can be modified is rate of monthly rental as per prevalent market rate. 24. It is true that the petitioner is only receiving Rs 454/- per month but at the same time, whether by the power of modifying order i.e. rate of monthly rental at which it was lastly paid can be modified is rate of monthly rental as per prevalent market rate. 24. It appears that the purpose of prayer for modification is not at all applicable in this case. The petitioner only seeking relief on the basis of equity. The equity as claimed by the petitioner is not at all maintainable. 25. In my view if the equity as required by the petitioner is granted to the petitioner it would, itself violates the directives and conscious decision of Hon’ble Division Bench where it has been ordered that the occupational charges should be at the rate of monthly rent at which was lastly paid. The said order passed by the Hon’ble Division Bench cannot be modified as it has attains its finality, petitioners either at the time of disposal of stay petition or thereafter never claimed occupation charge at prevalent market rate. It further appears that the appeal is pending since long, petitioners never take recourse to dispose of the appeal. 26. Let me consider whether the issue of occupational charges, has been finally decided in this case. In view of decision of Hon’ble Supreme Court in Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993, it has been observed that:- We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by them selves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though Section 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. Similarly, as stated already, though Section 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. One aspect of this question is that which is dealt with in a provision like Section 105 of the Civil Procedure Code which enacts: 27. In my opinion the issue of rate of occupational charges has already been finally decided by Hon’ble Division Bench. Raising the issue in the form of an application for modification is appears to be raising same issue in the subseqent stage of same proceeding; hence, it is barred by the principle of “ res judicata. 28. Under the above observations I find no justification to pass an order of modification has prayed for by the petitioner Accordingly CAN 9 of 2024 is considered and rejected. 29. Under the above observation, this writ petition is dismissed and disposed of. 30. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.