SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2035 OF 2008 Pandurang Dattu Ghuge ...Petitioner Versus Dattatray Ankush Sonawane & Ors. ...Respondents ...... Mr.S.S.Shah for Petitioner. Mr.A.B.Avhad for Respondents 1 & 2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Avhad waives notice for Respondents 1 and 2. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order dated 5th March 2008 passed below Exhibit 7 in Civil Appeal No.4 of 2008. By this order, the Court below has vacated the interim protection granted to the Petitioner/Appellant in respect of the suit property during the pendency of the Appeal. 5. The background in which the Appeal has been filed by the Petitioner before the Appellate Court is that the Petitioner filed Suit for declaration that he is the owner in respect of the suit property. It is not in dispute that the said Suit has been dismissed and finding has been recorded that he has no right, title or interest in the suit property. It is only after that decree became final, the Respondent filed Suit for possession of the suit property. That Suit has now been decreed. Against the said decree of possession, the Petitioner has carried the matter in appeal. 6. Ordinarily, in the background in which the : 3 : present proceedings have arisen, no fault can be found with the Appellate Court for not granting interim relief to the Petitioner during the pendency of the Appeal. However, the Petitioner is willing to compensate the Respondent for the loss to be caused to the Respondent on account of continued possession. This concession has been made by the Petitioner through Counsel relying on the exposition of the Apex Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors Atma Ram Properties (P) Ltd. vs. Federal Motors Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705. (P) Ltd. reported in (2005) 1 SCC 705. (P) Ltd. reported in (2005) 1 SCC 705. 7. It is seen from the record that the claim of the Respondent for mesne profit is in the sum of Rs.51,000/-(Rupees Fifty-one Thousand) for three years period. The decree for possession has been passed against the Petitioner on 23rd November 2007. In the circumstances, the Respondent would be entitled for claim of mesne profit at least from the date of the decree. In this context, it is ordered that for the time being, the Petitioner shall deposit sum of Rs.27,000/- (Rupees Twenty-seven Thousand) in the Appellate Court which is commensurate with the mesne profit claimed by : 4 : the Respondent for period of one and a half years from the date of the decree. 8. The Petitioner shall deposit that amount in the Appellate Court on or before 29th September 2008 as condition for continuing order of status-quo with regard to the suit property till the disposal of the Appeal. Besides, the Appellate Court shall decide the pending Appeal as expeditiously as possible and in any case not later than 31st March 2009. The parties agree through Counsel that they shall extend full cooperation to the Appellate Court for early disposal of the Appeal. 9. Parties to appear before the Appellate Court on 29th September 2008 when appropriate order be passed by the Appellate Court to ensure that the Appeal is disposed of before 30th March 2009. 10. Undertaking given by the Petitioner through Counsel to deposit the amount as aforesaid before 29th September is accepted. In case, the : 5 : Petitioner fails to deposit the said amount within specified time, the interim protection of status-quo shall stand vacated forthwith without further reference to the Court and the appeal shall also stand dismissed for non-prosecution without further reference to the Court. 11. Petition disposed of accordingly. 12. All concerned to act on an ordinary copy of this order, duly authenticated by the Office. A.M.KHANWILKAR, J.