1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LPA NO. 274/2011 IN WRIT PETITION NO. 5198 OF 2010 (M/s. Vora Automotives Pvt. Ltd. vs. Samrat L. Thakur (HUF) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI & P.D. KODE, JJ. JULY 07, 2011. Heard finally at the request of Shri Bhutada, learned counsel for the appellant and Shri Joharapurkar, learned counsel for the respondent – Caveator. Seen pursis filed by the respondent – landlord. Right to claim mesne profit provided under Order 20, Rule 12 of Civil Procedure Code, from the date of institution of suit till the judgment by Small Causes Court, is given up. Shri Bhutada, learned counsel raised LPA only on two contentions. First one is, grant of damages @ Rs.1,000/- per day from the date of service of notice till the date of filing of suit. According to the learned counsel, this grant though concurrent, is without jurisdiction. Second contention is, dispute about date from which mesne profit is to be calculated. It is urged that as appellate court has partially modified the judgment and decree, the doctrine of merger applies and mesne profit need to be calculated from the date of 2 judgment and decree of appellate court. According to Shri Joharapurkar, learned counsel, question about date from which mesne profit can be calculated, needs to be looked into by the Executing Court while considering the proceedings under Order 20, Rule 12 of C.P.C. He states that as per notice, time was given to the appellant to vacate the premises till 31.10.2001 and as he did not vacate, suit was required to be filed, therefore, grant of damages @ Rs.1,000/- per day is in accordance with law. The suit is filed under the provisions of Section 16 of the Maharashtra Rent Control Act, 1999. It is, therefore, obvious that the provisions of Section 106 of Transfer of Property Act, are not applicable and as such there is no question of termination of tenancy or then calling upon the appellant – tenant to hand over the possession immediately after such termination. The termination took place when the judgment and decree is pronounced by the Small Causes Court, Nagpur. As such there is no question of any damages till that date and respondent – landlord has by filing pursis, given up claim. Hence, grant of damages for the period prior to filing of suit in the present matter is unwarranted and without jurisdiction. That grant is, therefore, quashed and set aside. Whether doctrine of merger will apply, whether there was partial modification warranting its application, are the questions which can be looked into 3 by the Executing Court as and when the claim for mesne profit is made by the respondent – landlord. Hence, we leave that issue for consideration by that Court in accordance with law. Hence, LPA is partly allowed. The portion of judgment and decree granting the respondent – landlord damages for pre-suit period is hereby quashed and set aside. No costs. JUDGE JUDGE *GS.