1 WP 3910/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3910 OF 2010 Suresh Chunilal Jain .. Petitioner V/s Munnalal Deepchand Redhasani & Ors. .. Respondents Mr. Bharat Vaishnawa i/b Bharat Vaishnawa & Co. for the petitioner. Ms. Gauri Godse for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 22ND JULY 2010 P.C. : 1. By consent, heard finally at the stage of admission. 2. The petitioner, who is original defendant no.3 in the suit, challenges the conditional order of stay passed on 5 April 2010 by the appellate court. 3. In a suit for possession under the Bombay Rent Act a decree for possession was passed against all the defendants (defendant nos. 1 to 4) by the trial court on 1 December 2009. Only the defendant no.3 filed an appeal wherein he made an application for stay of the execution of the decree. The appellate court while 2 WP 3910/10 granting stay to the execution of the decree directed the petitioner (defendant no.3) to deposit compensation at the rate of Rs.60/- per day from 1 July 1992, i.e. from the date of institution of the suit. It is not disputed that the rent from the date of institution of the suit till the date of decree has been paid. However, compensation at a higher rate is directed to be paid from the date of the suit. In my view, at the interlocutory stage the appellate court, as a condition for stay of execution of the decree, could have imposed a condition for payment of compensation at the market rate from the date of the decree and not from the date of the initial suit, as the mesne profits were not till then determined. Hence, the impugned order is required to be modified. 4. There is one more reason for modification of the order. In pursuance of the order passed by this Court on 30 April 2010, the petitioner has deposited a sum of Rs.50,000/- in the trial court. In my view, that may be considered as a security for the past mesne profits, if any, from the date of suit till the date of the decree of the trial court. Hence, I pass the following order. (i) Execution of the decree qua the petitioner-defendant no.3 is 3 WP 3910/10 stayed subject to the condition that the petitioner deposits in the trial court a sum of Rs.60/- per day (to be deposited monthly in advance on or before 5th day of each month) from the date of the decree, i.e. 1 December 2009 onwards, till the disposal of the appeal. In the event the petitioner commits two cumulative defaults in the deposit of amount, the stay shall stand vacated and the decree shall be liable to be executed forthwith. (ii) The amount of Rs.50,000/-, which has already been deposited in the trial court, shall remain in the trial court as a security for the mesne profits, if any, from the date of the suit till the date of the decree at the first instance. The appellate court shall be free to pass an order relating to the same at the time of the decision of the appeal. (iii) It is clarified that this order of stay for execution of the decree shall not operate for the benefit of the other defendants who had not filed any appeal. (iv) The writ petition is disposed of. (D.G. KARNIK, J.)