Bela M. Trivedi, J. - (1.) THE present writ petition is directed against the order dated 6/12/2012 passed by the Additional District and Session Judge, Kekri, District Ajmer (hereinafter referred to as 'the Appellate Court'), in Civil Misc. Case No. 44 of 2012, whereby the Appellate Court has allowed the application filed by the respondent -defendant under Order XLI, Rule 5 of CPC, staying the execution of the judgment and decree dated 5/9/2012 passed by the Civil Judge (Junior Division), Kekri, District Ajmer (hereinafter referred to as 'the Trial Court') in Civil Suit No. 88 of 2009, subject to payment of the mesne profit @ Rs. 1,000/ - per month. It has been vehemently submitted by the learned counsel Mr. Jai Prakash Gupta for the petitioner that the Appellate Court has passed the impugned order without taking into consideration the contentions raised by the petitioner in his reply, and without taking into consideration the documents produced by the petitioner to show the DLC Rate, and the rent amount being fetched in respect of the other adjacent premises. Placing heavy reliance on the decisions in case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., : (2005) 1 SCC 705 & in case of State of Maharashtra & Anr. vs. Super Max International Private Limited & Ors., : (2009) 9 SCC 772, Mr. Gupta has submitted that the Appellate Court should have appreciated the fact that by granting stay against the execution of the decree for eviction, the petitioner -landlord would suffer substantial loss, and the same should be compensated by imposing the condition on the respondent with regard to the payment of mesne profit at the rate of rent prevailing in the market.
(2.) HOWEVER , the learned counsel Mr. M.I. Beg for the respondent -appellant has submitted that the impugned order passed by the Appellate Court being just and proper, the same should not be interfered with, however, he has no objection if the matter is remanded to the Appellate Court for deciding the issue of mesne profits afresh. In support of his contentions, the learned counsel for the petitioner has placed reliance on the decisions in case of Amrit Kumar Garg vs. Additional Distt. Judge No. 3, Ajmer & Anr., : 2008 (2) WLC P 169 & Nasruddin vs. Additional District Judge No. 2, Bhilwara & Anr., : 2009 (2) DNJ (Raj.) 744. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the Appellate Court, it appears that the Appellate Court, while staying the execution of the decree of eviction against the respondent, had imposed the condition directing the respondent to pay the mesne profit @ Rs. 1,000/ - per month, after considering the submissions made by the learned counsel for the respondent only. From the bare perusal of the order, it appears that the Appellate Court has not considered the reply filed by the petitioner, and also the documents produced by him. As rightly relied upon the judgment in case of Atma Ram Properties (P) Ltd. (supra) by the learned counsel for the petitioner, the Appellate court, while deciding the application under Order XLI, Rule 5 of CPC, should have taken into consideration the substantial loss, which the petitioner -landlord would suffer by staying the execution of the decree, and such loss should be compensated by putting the respondent to the reasonable terms for making the payment of mesne profit. That having not been done by the Appellate Court, the impugned order dated 6/12/2012 passed by the Appellate Court deserves to be set aside, and is accordingly set aside.
(3.) THE Appellate Court is directed to decide the application of the respondent made under Order XLI, Rule 5 of CPC afresh, and in accordance with law, considering the contentions raised by both the parties in the light of the settled legal position. Till the said application is decided by the Appellate court, the respondent shall continue to pay Rs. 1,000/ - per month by way of mesne profit. Having regard to the facts of the case, the Appellate Court shall decide the said application within one month from the date of receipt of this order. The appeal stands allowed accordingly.;