- (1.) LEAVE granted. This appeal has been filed against the judgment and order which is interim in nature passed by the High Court of Judicature at Bombay in Civil Application No. 14 of 2011 in Writ Petition No. 3238 of 2004 by which the application filed the Appellant herein for vacating the interim order of stay granted by the High Court on April 12, 2004 by which dispossession of the Respondent was stayed, was rejected but the Appellant was granted liberty to execute the decree passed by the Court of Small Causes regarding mesne profits and the issue whether the order granting mesne profits can be stayed or not was left open to be decided by the Appellate Court.
(2.) ADMITTEDLY , the Appellant has succeeded in getting a decree of eviction against the Respondent -tenant. The Respondent filed an appeal against the decree of eviction which was dismissed by the First Appellate Court and thereafter the Respondent -tenant filed a writ in the High Court assailing the decree of eviction. However, the appeal filed by the Respondent -tenant against the decree of mesne profits is still pending before the First Appellate Court. The High Court stayed the decree of eviction vide order dated 12/04/2004 and the matter remained pending. The Appellant felt aggrieved of the order of stay of eviction, clearly on the averment that while the Respondent is enjoying stay of dispossession in spite of the Appellant having succeeded in getting a decree of eviction, no condition was imposed on the Respondent -judgment -debtor and the Appellant suffered in the process by getting a sum of Rs. 500/ - p.m. only for the property which can fetch a rent multiple times more. The Appellant, therefore, filed an application for vacating the interim order of stay and the High Court while rejecting the application, allowed the Appellant to execute the order of Trial Court regarding mesne profits as already stated hereinbefore.
(3.) HAVING heard counsel for the parties, we are conscious of the fact that the Appellant although has succeeded in securing a decree of eviction in his favour, has not got possession and Respondent is enjoying the premises without even having to pay the fair rent by way of damages in regard to the disputed premises.;