Veerender Singh Siradhana, J. - (1.) IN the instant writ application, the petitioners/plaintiffs, have assailed the legality, validity and correctness of the order dated 23rd March, 2012 passed on an application under Order 41 Rule 5 of the Civil Procedure Code (hereinafter referred to as 'CPC', for short), along with appeal preferred under Order 41 CPC by the non -petitioner/defendant before the District Judge, Karauli. The appeal preferred is directed against the judgment and decree dated 18th February, 2012 passed by the learned trial Court, decreeing the suit for eviction and standard rent/mesne profit, in favour of the petitioners/plaintiffs with a further direction to pay rent @ Rs. 1,000/ - per month from the date of institution of the suit till handing over of the possession of the shop in dispute.
(2.) THE learned appellate Court on an application under Order 41 Rule 5 CPC preferred by the non -petitioner/defendant has stayed the execution of the judgment and decree including money decree of the rent from the date of filing of the suit till the date of judgment and decree, subject to the condition that the non -petitioner/defendant will pay Rs. 1,000/ - per month from the date of decree till the possession is handed over. Aggrieved of the impugned order dated 23rd March, 2012, the petitioners/plaintiffs have approached this Court with the prayer for the following relief(s): - - "It is, therefore, most humbly prayed that Your Lordships may graciously be pleased to admit and allow this writ petition and entire record of the learned trial court be called for and further be pleased to quashed and set aside the order dated 23.03.2012 passed by non -petitioner No. 2 in civil misc. case No. 5/2012 titled as (Najamuddin v. Thakur Shri Govind Dev Ji and another) alternatively it is humbly prayed that the non -petitioner be directed to pay the amount of rent @ Rs. 1000/ - p.m. from the date of filing the suit till the date of judgment and decree also to plaintiff as directed by the learned trial court. Further it is most respectfully prayed that during the pendency of the appeal the non -petitioner No. 1 may kindly be directed to pay mesne profit @ Rs. 2000/ - p.m. to the plaintiff. Any other order or direction which the Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioner. Cost of the writ petition be also awarded in favour of the petitioner." The learned counsel for the petitioners/plaintiffs has vehemently submitted that the learned appellate Court while making the impugned order dated 23rd March, 2012, failed to consider the materials available on record and in a cursory manner stayed the execution of the judgment and decree of eviction without realizing the fact that the petitioners/plaintiffs' claim was adjudicated upon after a period of 13 years, thereby depriving the petitioners of the fruits of long drawn litigation.
(3.) THE learned counsel would further submit that the learned appellate Court completely ignored the mandate of Rule 5 of Order 41 CPC, which specifically contemplates that no order of stay of execution shall be made unless; firstly, the Court records it's satisfaction that substantial loss may result to the party applying for stay of execution unless the order is made. Secondly, security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him. The learned counsel further urged that while making the impugned order dated 23rd March, 2012, the appellate Court also stayed money decree of the rent, which was passed by the learned trial Court @ Rs. 1,000/ - per month from the date of filing of the suit. The appellate Court even did not call upon the respondent/defendant to furnish security for due performance of the decree as may ultimately be binding upon him and therefore, the impugned order is contrary to the mandate of Rule 5 of Order 41 CPC. The learned counsel further pointed out that the disputed shop is situated in the main market of Karauli City, which is known as "Sadar Bazar" and the rent of identical shops is much higher than what has been assessed by the learned trial Court. Placing reliance on the opinion of the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. : : (2005) 1 SCC 705; the learned counsel stressed, that the tenancy comes to an end on passing of the judgment and decree and does not continue until the tenant is actually and physically evicted from the premises in execution of the decree and therefore, if the execution of the judgment and decree is stayed, the decree -holder is entitled for compensation by awarding an adequate amount and mesne profit whereas the learned appellate Court in the instant case at hand, completely lost sight of the principle aforesaid.;