JAIN, J. - (1.) HEARD learned counsel for the parties.
(2.) AN important question of law, which arises for consideration in the present case, is as to whether an application under Section 151 of the Code of Civil Procedure, 1908, (for short, `c. P. C. ') on behalf of the respondent/decree-holder is maintainable for directing the appellants to make the payment of mesne profit/compensation as per prevalent market rate of monthly rent of the rented shop during the pendency of the second appeal for hearing? The plaintiff-respondent filed a suit for eviction in respect of the disputed shop against the defendant-appellants, which was decreed by the lower court as well as the lower appellate court, both, on the ground of personal bona fide necessity as well as default in making the payment of monthly rent. However, in presence of both the parties, this court vide order dated 1. 12. 2005 admitted the second appeal and formulated the substantial questions of law and also stayed the further proceedings in the execution case arising from the impugned judgment and decree till disposal of the appeal. Thereafter the respondent filed the present application under Section 151 of the C. P. C. on 7. 8. 2006 for payment of mesne profit/compensation to him during the pendency of the second appeal. The appellant has filed his reply to the above application. Learned counsel for the defendant-appellants contended that the order admitting the appeal as well as staying the eviction decree was passed in presence of both the parties and no order was passed regarding payment of mesne profit compensation during the pendency of the second appeal, therefore, the application under Section 151 of the C. P. C. is not maintainable and the same is liable to be rejected. I have heard and considered the submissions of learned counsel for both the parties. The order dated 1. 12. 2005 makes it clear that this Court while admitting the second appeal stayed the further proceedings in the execution case arising from the impugned judgment and decree, during pendency of the appeal. It is clear from the order itself that there is no reference of any prayer on behalf of the respondent for payment of mesne profit/compensation, nor any order was passed by this Court having accepted or rejecting the same.
(3.) SO far as power to the appellate court under Order 41 Rule 5 of the C. P. C. , while passing the order of stay under Order 41 Rule 5 of the C. P. C. , is concerned, it is settled by the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Limited vs. Federal Motors (P) Limited (2005) 1 SCC 705, and Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562, that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of the C. P. C. , on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour, in the event of the appeal being dismissed. Here is the case where at the time of exercising the powers under Order 41 Rule 5 of the C. P. C. , no such prayer was made on behalf of the landlord-decree-holder that in case the execution of the eviction decree is stayed by this Court then the tenant- appellants be directed to pay the mesne profit/compensation as per prevalent market rate of the monthly rent to compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order. The order of this Court dated 1. 12. 2005 further shows that no adverse order was passed to the effect that mesne profit/compensation will not be paid to the plaintiff respondent during the pendency of the appeal. As per the provisions of Section 151 of the C. P. C. , it is clear that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make stay order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The Section is thus declaratory in nature. It does not confer inherent powers in a court but declares that such powers have been vested in every court of civil jurisdiction. It further states that no provision of the Code should be taken or deemed to limit or otherwise affect these inherent powers. These powers are inherent in the Court by virtue of its duty to do full and complete justice between the parties before it. Such powers are in addition to the powers specifically and expressly conferred on the Court by the Code. They are thus complementary and the Court can exercise them when exercise thereof is not in conflict with express provisions in the Code or against the intention of the Legislature. ;