1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8325 OF 2009 Sourendra Nath Sarkar ...Petitioner vs. Dhruv K. Desai Mrs.Mun Mun K. Desai ...Respondents Dr.Shaswati Sarkar for the petitioner Mr.K.D.Shah for respondent nos.1 and 2 Mr.R.S.Ghadge i/b Mr.A.S.Desai for respondent no.4 CORAM :A.S.OKA,J. DATE : MARCH 8, 2010 P.C. 1 Heard the learned counsel for the petitioner, learned counsel for the respondent nos.1 and 2, learned counsel for the respondent no.4. Considering the limited controversy involved in this petition, the same is taken up for final disposal at admission stage. 2 The petitioner is the original plaintiff and the respondents are the original defendants. In the suit for eviction filed by the petitioner the learned trial Judge passed a decree, the operative part of which reads thus : The suit is decreed with costs. The defendants be ordered and decreed to vacate the suit premises being Block no.493 in Building No.9-A, D. N. Nagar, Andheri, Bombay 400 058 and to deliver its vacant and peaceful possession to the plaintiff. The defendant be further decreed and ordered to pay to the plaintiff a sum of Rs. 22,000/- being the arrears of compensation as 2 per the particulars of claim Ex.B together with interest thereon @ Rs.12% p.a from the date of filing of the suit till payment. The defendants be further ordered as decreed to pay sum of Rs.8,93,649/- against the arrears of society s dues and compensation for plaintiff after deductions of the amount paid by the defendant nos.1(a) and 2 in the City Civil Court and this Court but no interest. And enquiry be held for mesne profit from the date of filing of the suit till the defendants vacate and hand over the suit premises to the plaintiff. 3 The 1 st and 2 nd respondents preferred an appeal against the said decree which has been admitted. The application for stay made by the petitioner is pending. What is operating today is the ad-interim order passed by the Appellate Court which reads thus : Without prejudice to the rights and contentions of both the parties, the appellants are allowed to deposit the amount of Rs.2 lacs in the court today by placing on record pay order, as contended by the learned Advocate for the appellants. In view of this order of stay dated 28.5.2008 passed by the Vacation bench to continue till 17 th June 2008. Office is directed to accept this amount even after office hours. The request made by the respondents- 3 original plaintiffs for withdrawal of this amount, will be considered at the time of hearing of the said applications at Ex.5, 13 and 17. 4 By the impugned order passed by the trial Court on 22 nd June 2009, the proceedings of the Misc. Application no.121 of 2008 for execution of the decree and for determination of mesne profit filed by the petitioner has been stayed. The said order has been confirmed in Revision application filed by the petitioner. 5 I have heard the learned counsel for the parties. I find that the application for stay at Exhibit-5 is still pending before the Appellate Court. The effect of the impugned order is that the Miscellaneous Application no.121 of 2008 will remain stayed and even the enquiry regarding mesne profits will remain stayed. 6 The learned counsel for the petitioner pointed out that the decree is not only for possession but also for directing the respondent nos.1 and 2 to pay compensation as well as arrears of society s dues. There is also direction for holding an enquiry for determination of mesne profits. The learned counsel for the petitioner submitted that even the decree as regards dues payable to the society has not been complied with. 7 As of today, the application at Exhibit-5 for stay is still pending. When the application for stay is heard by the Appellate Court, the petitioner can always contend that the execution of money decree cannot be stayed. Therefore, as of today, it is not possible to find fault with that part of the impugned order by which the proceedings of Misc. Application no.121 of 2008 have been 4 stayed. However, there is no warrant to stay enquiry for determination of mesne profits. It is obvious that if application for stay at Exhibit-5 is rejected, notwithstanding the impugned order, the execution application will proceed. 8 Hence, Writ Petition is disposed of by passing the following order : i) Impugned orders are modified and it is directed that the stay granted as far as enquiry for fixation of mesne profits are concerned stands vacated. ii)Rest part of the impugned orders will be subject to further order which may be passed by the Appellate Court on application for stay. iii)The Appellate Court will take up the application for stay for hearing and will decide the same as expeditiously as possible and in any case within a period of 8 weeks from today. iv)All contentions of the petitioner including the contention that the execution of money decree cannot be stayed are kept open which can be agitated at the time of hearing the stay application. v) Petition is partly allowed on above terms. vi)All contentions of the parties on merits are kept open. JUDGE