Amitava Lala, J. - (1.) The second appeal arises out of a concurrent finding of facts in a dispute between landlord and tenant. However, appeal was admitted by a Division Bench of this Court on the grounds No. VI, X, XIV, XVI, XVII and XVIII. After admission of the appeal by the Division Bench an application for stay of the Title Execution Case No. 151 of 1986 was proceeded before a Single Judge of this Court and the applicant herein obtained an order of stay for a limited period which was extended from time to time. Today the date is fixed for final hearing of this application on affidavits exchanged by or between the parties herein.
(2.) Mr. S.P. Roychowdhury, learned senior Counsel, appearing on behalf of the appellant/tenant contended before this Court that when the appeal has been admitted by a Division Bench of this Court the order of stay is virtually automatic. Therefore, there is hardly anything to speak out in respect of grant of such order. However, as the cause of action for a mesne profit will arise on the eviction decree and when the Title Execution Case is yet to be heard it is an appropriate circumstance that the order of stay is to be formally passed in the instant case. He cited 1982(3) SCC 484, Mool Chand Yadav & Anr. vs. Raza Buland Sugar Company Limited, Rampur & Ors., to establish judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted.
(3.) Mr. Roychowdhury frankly and fairly confessed before this Court that such order could be passed on condition. For an example, he contended that amount of rent can be enhanced with a direction upon the appellant/tenant to pay the same to the respondent/landlord on the terms that the same will be adjusted in future on account of mesne profit so that the interest of the respondent could not be prejudiced.;