Madhya Pradesh High Court
Smt. Savitri Devi Chauhan Anothers vs Rameshchandra Dhakad on 18 June, 2020
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
01 FA-140-2020
HIGH COURT OF MADHYA PRADESH
FA-140-2020
(Smt. Savitri Devi Chauhan & Anr. vs. Rameshchandra Dhakad & Ors.)
Gwalior, Dated: 18/6/2020
Shri Prashant Sharma, learned counsel for the appellants.
Shri V.K. Bhardwaj, learned Sr. Counsel with Shri Rohit Batham,
learned counsel for respondent No.1.
Heard on admission through Video Conferencing. This first appeal is preferred under Section 96 of the Code of Civil Procedure 1908, against the judgment and decree dated 26/11/2019 passed in Civil Suit No.9-A/2011 by Fourteenth Additional District Judge, Gwalior, whereby the suit of the plaintiff/respondent No.1 has been decreed.
From perusal of the record, the points involved in this appeal seems to be arguable, hence, the First Appeal is admitted for final hearing. Record is already received.
Also heard on I.A.No.280/2020, an application under Order XLI Rule 5 of CPC.
Learned counsel for respondent No.1 submits that the respondent is entitled to get mesne profit from the appellants, as they have stated that they are having possession over the disputed land and while considering the application under Order XLI Rule 5 of CPC, this Court has ample power to impose specific condition.
Per contra, learned counsel for the appellants opposed the prayer and has submitted that such condition could not be imposed in this matter, as this fact has already been considered by the Court below and 02 FA-140-2020 prayer of the respondent has been declined by the Court below.
In the opinion of this Court, it is not appropriate to grant mesne profit in this case. Hence, prayer of the respondent for grant of mesne profit is hereby disallowed.
Learned counsel for the appellants has submitted that appellant are in possession of the suit land and if they are dispossesed in execution of the impugned decree, they would suffer irreparable loss.
Taking into account the submission made by learned counsel for the appellants and in view of the decision rendered in Atma Ram Properties (P.) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 and Pabbati Venkataramaiah Chetty vs. Pabbati N. Rathnamaiah Chetty & Others, reported in (2007) 3 SCC 151, it is directed that execution of the impugned decree so far as it directs delivery of possession shall remain stayed till final disposal of the present appeal, subject to appellants' furnishing security to the satisfaction of the trial Court within a period of four weeks for due performance of the decree which may ultimately be passed against the appellants in terms of Order XLI Rule 5(3) of the Code of Civil Procedure.
At this juncture, learned counsel for the respondent No.1 submits that he wants to file cross-objection, for which liberty be granted.
The respondent may file cross-objection, if any. Certified copy/e-copy as per rules/directions.
(Rajeev Kumar Shrivastava)
Pawan Kumar
pwn*
2020.06.18 Judge
19:16:35
+05'30'