Narendra Kumar Jain, J. - (1.) THE petitioner in person has filed an application for early listing of the writ petition which is not opposed by learned Counsel for the respondent No. 2, therefore, the same is allowed and at the request of petitioner and learned Counsel for the respondent, the writ petition is being heard and is being disposed of finally.
(2.) HEARD the petitioner in person as well as the learned Counsel for the respondent No. 2. The plaintiff filed a suit for eviction in respect of disputed property in the trial court which was decreed vide judgment and decree dated 15th November, 2006. Being aggrieved with the same, the defendant respondent No. 2 - Gyan Chand filed an appeal before the first appellate court alongwith the stay application under Order 41 Rule 5 CPC. The plaintiff opposed the application under Order 41 Rule 5 CPC by filing a written reply. The plaintiff also filed separate application under Section 151 CPC to pass an order in respect of mesne -profit under Order 41 Rule 5 CPC in respect of disputed property during the pendency of the appeal. The learned appellate court vide its order dated 21st February, 2007 directed that plaintiff will be entitled to receive the monthly rent as per the rate fixed by the trial court and stayed the eviction proceedings.
(3.) THE petitioner Mr. Vipin Goyal submits that the learned appellate court committed an illegality in not passing an order of mesne profit in respect of disputed property during the pendency of the first appeal. The learned Counsel for the respondent No. 2 submits that matter is already fixed before the first appellate court on 13th August, 2008 for passing an order on the application under Section 151 CPC in respect of mesne profit in respect of disputed property. The petitioner also admits that the matter is fixed before the first appellate court for orders on his application under Section 151 CPC regarding fixing of amount of mesne -profit to be paid by defendant to the plaintiff.;