1 caf748 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.748 OF 2011 IN FIRST APPEAL NO.411 OF 2011 Rajendra Ambikaprasad Mishra & Anr. ...Applicants vs. Ashadevi Dineshchandra Gupta & Ors. ...Respondents Mr.Mr.Kamlesh Mishra i/b Lalit Jain for the applicants Ms Harsha Shah i/b Mr.Y.R.Shah for the respondents CORAM : A.S.OKA,J. DATE : SEPTEMBER 8, 2011 P.C.: 1 Heard the learned counsel for the applicants and the learned counsel for the respondent. The applicants are the appellants who are the defendant nos.1 and 2 in a suit filed by the respondents. By the impugned decree, the applicants have been directed to hand over possession of shop nos.9 and 10 to the respondent. The appeal has been admitted for final hearing. 2 This is an application for stay of execution of the impugned decree. On 1st August 2011 a statement was made by the applicants that without prejudice to their rights and contentions, they were ready and willing to hand over possession of shop no.10 forming part of the suit premises to the respondent. On 11th August 2011, when this application appeared on board, the learned counsel for the respondent 2 caf748 made a grievance that the possession of the portion of passage behind shop no.10 has not been handed over by the applicants. The applicants showed willingness to divide the passage behind shop nos.9 and 10 and to hand hand over possession of the passage behind shop no.10 to the respondents. This Court appointed an Officer of this Court as a Court Commissioner in whose presence the work of erection of partition in the passage was carried out. The report of the Commissioner dated 5th September 2011 is on record. The Commissioner has noted that passage between shop nos.9 and 10 was divided into two equal portions by putting up wooden partition and the possession of the portion of the passage behind shop no.10 was handed over to the respondents in his presence. There is no dispute between the parties that after the division of passage, the possession of the passage behind shop no.10 has been handed over to the respondents. 3 The learned counsel for the applicants submitted that the applicants are using shop no.9 only the residential purpose and they shall continue to do so for the same purpose till the appeal is decided. He states that the applicants are ready and willing to deposit a sum of Rs.500/- per month without prejudice to their rights and contentions in the appeal. The learned counsel for the respondents relied upon the valuation report of M/s.Nadkarni & Company which records an opinion that the market rate of rent of the suit premises bearing shop nos.9 and 10 is Rs.43,110/- per month. She submitted that the machinery in the shop no.10 has been removed by 3 caf748 the applicants. Her submission is that if the stay is to be granted as regards shop no.9, the applicants be directed to deposit the amount as per the valuation report submitted by M/s.Nadkarni & Company. 4 The appeal has been admitted for final hearing. Even after the appeal was admitted, without prejudice to their rights and contentions in the Appeal, the applicants have handed over possession of practically one half of the suit property in the form of the shop no.10 and passage behind shop no.10 to the respondents. Therefore, during the pendency of the Appeal, it will be open for the respondents to use shop no.10 for commercial purpose. The applicants have made a statement that they are going to use the shop no.9 only for the residential purpose. In view of these facts, stay to the execution of the decree for possession as regards shop no.9 deserves to be granted subject to the applicants depositing a sum of Rs.500/- per month with the Trial Court from the date of impugned decree till the final disposal of the appeal. 5 Hence, I pass the following order : i) It will be open for the respondents to remain in possession of shop no.10 and passage behind shop no.10 which is handed over in their possession till the final disposal of the appeal subject to final order which may be passed in the appeal. ii)It is made clear that the applicants have handed over the possession as aforesaid to the 4 caf748 respondents without prejudice to their rights and contentions in the appeal. The respondents are hereby restrained from creating third party rights in respect of shop no.10 and the passage behind shop no.10 till the final disposal of the appeal. iii)There will be stay of execution of the decree for possession in respect of the shop no.9 and the passage behind shop no.9 subject to condition that the applicants shall not create any third party rights in respect of the said premises and shall not part with possession thereof subject to further condition that the applicants shall deposit compensation at the rate of Rs.500/- per month with the Trial Court from the date of the impugned decree till the final disposal of the Appeal. iv)The compensation payable at the rate of Rs. 500/- per month from the date of decree till 30th September 2011 shall be deposited by the applicants with the Trial Court on or before 31st December 2011. v) The applicants shall keep on depositing the compensation amount from the month October 2011 onwards before the Trial Court on or before 10th day of every calendar month. vi)In the event the applicants commit any default, it will be open for the respondents to apply to this Court for vacating the interim stay. vii)As and when the amounts are deposited by the applicants with the Trial Court, it will be open for the respondents to withdraw the same. However, the withdrawal will be subject to final 5 caf748 outcome of the appeal with further condition that in the event the applicants succeed in the appeal, the respondents will restitute the amounts with appropriate rate of interest. viii)The Court Commissioner is permitted to withdraw a sum of Rs.2500/-. ix)Civil Application is disposed of accordingly. JUDGE