IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1158 OF 2006 WRIT PETITION NO. 1158 OF 2006 WRIT PETITION NO. 1158 OF 2006 Textile Committee ... Petitioner V/s Roopjyot Engineers Pvt. Ltd. ... Respondent Mr. S. Purohit with Prateek Sakseria with Tapan Deshpande i/by Amarchand & Mangaldas & S.A. Shroff & Co. for the petitioner. Ms. Ranjana Parekh for the respondent. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 22ND MARCH, 2006 DATED: 22ND MARCH, 2006 DATED: 22ND MARCH, 2006 P.C. P.C. P.C.: 1. Heard learned counsel for both parties. Perused the record. 2. The petitioner has challenged the order passed by the lower appellate Court dated 13.1.2006 making the notice absolute and directing that the execution of the impugned decree so far as recovery of possession is concerned should be stayed till hearing and final disposal of the appeal. Application Exh.5 for stay to the hearing of interim notice being being Misc. Notice No. 52 of 2005 for determining mesne profit by the trial Court till hearing and final disposal of the 2 appeal, however, was rejected. 3. The appellants tenant filed Appeal No. 7 of 2005 against the decree of eviction as well as direction to make enquiry to the mesne profit contemplated under Order 20 Rule 12 of the C.P.C. was passed. After the said decree was passed, the appeal was preferred by the present petitioner and stay was sought for. The stay was to the effect that execution of decree be stayed. . Now the question is raised whether the entire operative part of the impugned order of the Trial Court came to be stayed by the lower appellate Court or whether the direction in the nature of liberty to file an application for determining the mesne profit also was covered by the said order. 4. Time and again this Court as well as the Apex Court have come to the conclusion that while granting stay of execution of decree, the decree granted by the lower Court comes to stay. However, the question is whether the preliminary decree granted in favour of the concerned party also is automatically stayed or not. In this regard the learned counsel for the respondents sought to put reliance on the ruling of the learned 3 Single Judge of this Court in the case of Purshottam & Purshottam & Purshottam & anr. v/s M/s. Nag Vastra Bhandar, reported in A.I.R. anr. v/s M/s. Nag Vastra Bhandar, reported in A.I.R. anr. v/s M/s. Nag Vastra Bhandar, reported in A.I.R. 1979 Bombay 60 1979 Bombay 60 1979 Bombay 60, wherein this issue was settled holding that the enquiry into mesne profits could not be held to be suspended by order of stay of execution application. 5. Moreover, in this dispute, the purpose would be served of both parties if the enquiry into mesne profit is directed to be continued with direction that the fruits of the said enquiry will not be allowed to be executed pending the appeal and those shall be subject to the final decision in the said appeal. 6. Hence, it is hereby directed that the order passed by the lower appellate Court dated 13.1.2006 is confirmed with a rider that the decision in Misc. Notice No. 52 of 2005 i.e. the application for fixing of mesne profits shall be continued but the decision will not be implemented pending the appeal and shall remain subject to final outcome of the appeal. It is further directed that the lower appellate Court shall take up the appeal for hearing expeditiously so as to complete the adjudication on merits within six months from the date of this order. 4 With these directions, the petition stands disposed of with no order as to costs. .....