NARENDRA KUMAR Vs. JEEVAN LATA AND OTHERS

JUDGEMENT

(1.) Under challenge is the order dated 8-9-2015 passed by Additional District Judge No.16, Jaipur Metropolitan on an application under Order 41, Rule 5 CPC at the instance of the petitioner-defendant (hereafter 'the defendant') filed along with his first appeal against the final judgment and decree dated 11- 2-2015, passed by the Additional Civil Judge No.3, Jaipur Metropolitan. Thereby while staying the dispossession of the defendant from the suit property pursuant to the decree dated 11-2-2015 the appellate court directed that the stay would be conditional on payment of Rs. 15,000/- per month as mesne profits as deposited with the trial court or in the bank account of the decree holder.

(2.) Mr. Shrey Gaharana, counsel for the defendant submitted that no doubt while passing an interim order under Order 41, Rule 5 CPC staying dispossession of the judgment debtor in pursuance of a decree, the court has a power to fix mesne profits. He submitted that yet that power has to be reasonably exercised. Mr. Shrey Gaharana submitted that rent of the suit property, eviction wherefrom has been decreed on 11-2-2015 was only Rs. 109/- per month. It was submitted in the circumstances, the mesne profits while staying the operation of the judgment and decree dated 11-2-2015 ought to have been reasonably determined with reference to the current rent and not exorbitantly fixed at Rs. 15,000/- under pain of stay of the decree dated 11-2-2015 being rendered inoperative as was done by the appellate court. The judgment debtor, Mr. Shrey Gaharana submitted, is a man of poor means and the tenanted property is not used for commercial but for residential purpose where the defendant resides along with his large family. As the mesne profits exorbitantly fixed cannot be deposited, the inevitable consequence would the eviction of the defendant during the pendency of the appeal. It was submitted that this court's interim order 11-3-2016 in SBCWP No.2673/2016 to pay Rs. 10,000/- per month as mesne profits also is excessive and hence not complied with. The respondent-decree holder (hereafter 'the decree holder') has already initiated execution proceedings and this court in the exercise of its supervisory jurisdiction should undo the injustice, fix mesne profits during the pendency of the first appeal and the judgment and decree dated 11-2-2015, more reasonably with reference to rent @ Rs. 109/- per month prevailing at the relevant time and allow the defendant judgment debtor reasonable time to pay the same.

(3.) Heard. Considered.