PADHIYAR JESINGBHAI HIRABHAI Vs. SHAIKH IBRAHIMBHAI NURBHAI

JUDGEMENT

(1.) . Rule Mr. Janak V. Japee waives service of rule on behalf of respondent. With the consent of the learned Advocate appearing for the parties the matter is finally heard today.

(2.) . The petitioner is the original defendant and a judgment-debtor against whom a decree of eviction from the suit premises is passed by two courts below Being aggrieved by the decree of eviction the petitioner has preferred Civil Revision Application No 795 of 1991 before this Court and the learned Single Judge of this Court while admitting such Civil Revision Application has ordered as under: Rule Ad interim relief with regard to decree for possession on usual terms. The writ of this court which is sent to the Trial Court reads as under. It is hereby accordingly ordered that on the applicant depositing all the arrears of rent/mesne profits within four weeks from the date of receipt of this writ and further depositing future rent/mesne profit as it accrues due from time to time the judgment and decree passed by you in Regular Civil Suit No 135 of 1987 of your Court be and is hereby stayed with regard to possession till final disposal of the aforesaid Civil Revision Application by this Court.

(3.) . The aforesaid order of the court was communicated and received by the Trial Court and the writ was certified on 26th July 1991. The petitioner-tenant was expected to pay up the entire arrears of rent/mesne profit within four weeks from 26th of July 1991 and was also expected to pay from time to time the rent/mesne profit as and when it accrued due. It is the case of the landlord/decree holder that the tenant has failed to comply with the order of this court so as to deposit the entire arrears of rent then due within four weeks and also by failing to pay regularly mesne profit which has fallen due thereafter from month to month. It is the case of the decree holder that since the order of stay granted by this Court was conditional order stay granted by this Court automatically stood vacated on failure of the tenant to comply with the terms and conditions of the stay granted by this court. The decree holder has thereupon filed execution proceedings and in such execution proceedings Civil Judge S.D. Himatnagar has passed the impugned order on 26th September 1994 whereby he has taken the view that since the tenant has failed to comply with the terms and conditions imposed by this Court while passing an order of stay the order automatically gets vacated and warrant for possession is required to be issued.