WP. 5435-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 5435 OF 2011 Rustom Dehmiri ...Petitioner Vs. Smt. Shamsi Malek Malekpur & Anr. ...Respondents *** Ms. Geeta Shastri i/b Khilnani & Co., for the Petitioner. Mr. P. V. Nichani, for the Respondent. *** CORAM: V. M. KANADE J. DATE : AUGUST 8, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and the counsel appearing on behalf of respondent. The petitioner is aggrieved by an order passed by the Small Causes Court (Appellate Bench), which was pleased to direct the petitioner to pay interim compensation @ Rs.27,750/- per month as a condition for grant of stay to the execution of the decree which was passed by the trial court. It is submitted that exparte decree was passed by the trial court and against the said decree, the petitioner has preferred an appeal. Along with WP. 5435-11 - 2 - the appeal, an application was filed for granting stay to the execution of the exparte decree. While deciding the said application, the court on the basis of Architect’s report, which was tendered by the respondent herein, has fixed the said compensation. 2. Firstly, it is submitted that area of the premises is 145 sq. ft. However, the court has arbitrarily calculated the said area as 185 sq. ft. Secondly, it is submitted that the compensation which has been directed to be paid is almost 72% of the original rent, which is being paid by the petitioner. It is submitted that, therefore, discretion which is vested in the appellate court under Order 41, Rule 3 and 5 of the Civil Procedure Code has not been exercised in a judicious manner. 3. In my view, the said submission, at this stage, cannot be accepted. Since the appellate court is entitled to impose condition while granting stay to the decree passed by the lower court under Order. 41, Rule 5 of the C.P.C. This Court is ordinarily slow in interfering with the such orders. The Apex Court in the case of – M/s. Atma Ram Properties (P) Ltd. Vs. M/s. Federal Motors Pvt. Ltd. [2005(1) SCC 705] has held that the appellate court in rent cases is entitled to fix interim compensation during pendency of the appeal and in view of the said judgment, the lower appellate court has fixed the said amount as interim WP. 5435-11 - 3 - compensation. Hence, no case is made out for interfering with the impugned order which is passed by the lower appellate court. Civil Writ Petition is, therefore, dismissed. 4. It is clarified that this Court has not confirmed the amount of compensation which is fixed by the lower appellate court but however, has refrained from interfering with the said order. Secondly, in my view, it would be appropriate if the lower appellate court decides the appeal as expeditiously as possible within two months, since the appeal has been preferred against the exparte decree which was passed by the trial court. Time to deposit the monthly interim compensation is extended by a period of four weeks. Further, the respondents shall not be permitted to withdraw the said amount during the pendency of the appeal. [ V. M. KANADE J.]