Interim Order 1

Order Details: Order on Exhibit
Pdf Text: 1 Exh6 in Appeal302022 dt.28.3.22 stay
IN THE COURT OF SMALL CAUSES, MUMBAI
(BANDRA BRANCH)
(APPELLATE BENCH)
Order below Exhibit – 6 in
2A-Appeal No. 30 of 2022
(CNR No. MHSCA3-000062-2022)
Arising out of
R.A.E. & R. Suit No.136/411 of 1994
Smt. Ashadevi widow of Ratanlal Jain ... Appellant
(Org. Defendant No.2)
Versus
1. M/s. Laxmi Associates & Others ... Respondents/
(Original Plaintiff, Org.
Defendant No.1(a) &
Org. Defendant No.3)
Appearance :-
1. Mr. Mayank A. Chandan, learned Advocate for the Appellant.
2. Mr. Jitendra G. Damani, learned Advocate for the Respondents.
Coram : Shri Mohammad Nasir M. Saleem
Addl. Chief Judge &
Shri. R.S. Salgaonkar, Judge
Court Room No. 31
Date : 28th March, 2022
ORDER: - (Per Shri. R.S. Salgaonkar, Judge)
This is an application under Order 41 Rule 5 of The Code of
Civil Procedure, 1908.
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2. The decree is against defendant Nos. 1 to 3. One of the
Judgment Debtor (Defendant No.2) has field this appeal and filed this
application for stay of decree.
3. It is argument of learned Advocate of respondent/plaintiff
that stay cannot be granted in favour of a third party.
4. The plaintiff has impleaded defendant No.2 in the suit. The
decree is against defendant No.2. The decree is joint and several.
Therefore, the appellant has right to file appeal in capacity of Judgment
Holder. For the same reason, appellant can very well invoke Order 41,
Rule 5.
5. On point of quantum of compensation this court is relying
upon judgment of
Atma Ram Properties (P) Ltd. Vs. M/s. Federal
Motors Pvt. Ltd. [(2005)1 SCC 705] and
Super Max International
Pvt. Ltd. And another Vs. State of Maharashtra and another
[2009(2) Mh.L.J. The appellant has given a report that the
compensation amount should be Rs.24,000/- per month. The advocate
for respondent relied upon valuation report of Rs. 1,20,000/- per
month.
6. This court has carefully considered every document
adduced by parties in support of respective claim of interim
compensation.
7. This court makes it clear that this order is not adjudication
about entitlement of mesne profit. It is for the plaintiff/decree holder to
adduce evidence and get a final decree for mesne profit. Condition for
stay cannot substitute the hearing of mesne profit proceeding on merit.
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This court granting stay to execution of decree to the extent of
possession only, and there is no stay to passing of final decree of mesne
profit.
8. This court, at this juncture, desire to strike balance of
equities. Right to appeal as well as right of landlord to earn return from
the property.
9. For the overstated reasons, as an interim arrangement, this
court determines Rs. 50,000/- (Rs. Fifty Thousand only) as interim
compensation as condition of stay under Order 41, Rule 5 of Code of
Civil Procedure, 1908. Hence, the order :-
: O R D E R :
1 The Application (Exhibit No. 6) is allowed by
invoking Order 41, Rule 5 of the Code of Civil
Procedure, 1908, execution of decree to the extent
of possession is stayed till the decision of this
appeal on condition of defendants depositing
Rs.50,000/- (Rupees Fifty Thousand only) per
month as interim compensation from the date of
the decree till conclusion of proceeding under
Order 20, Rule 12 of the Code of Civil Procedure,
1908 or till delivery of possession, whichever is
earlier in time.
2. This order is subject to final decision in appeal. If
the appeal is allowed, this order shall come to an
end and the amount so deposited shall be paid to
the appellants. If the appeal is dismissed, the
order of deposit shall continue as interim
arrangement unless there is express order of this
Court modifying this order.
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3. Amount be paid from the date of decree till March
2022 in Court within 30 days from the date of
order. Further amount be paid before 10th day of
every month. The amount be deposited in Fixed
Deposit if the appeal is not decided within three
months from the date of this order.
4. On failure to deposit amount as above stated or on
any consecutive two default in future payment,
stay shall stand vacated automatically. But this
order shall not be enforced as a decree and right to
appeal shall survive even on vacating the stay
order.
I agree,
(Mohammad Nasir M. Saleem) (R.S. Salgaonkar)
Addl. Chief Judge, Judge,
Court Room No. 31, Court Room No. 31,
28/3/2022 28/3/2022
Typed on : 28/3/2022
Checked & signed on : 28/3/2022
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