Bombay High Court
State Bank Of India And Another vs Amum Builders on 25 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:40632
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 15557 OF 2024
IN
CIVIL REVISION APPLICATION NO. 98 OF 2021
1. State Bank of India
a Statutory Corporation incorporated
under the State Bank of India Act, 1955.
Having its Corporate Office at
State Bank Bhavan, M.C. Road,
Nariman Point, Mumbai - 400 021.
2. State Bank of India Quarters
Irla Society, Near Velankani Church,
Vile Parle (West),
Mumbai - 400 057. ..Applicants
In the matter between
1. State Bank of India
a Statutory Corporation incorporated
under the State Bank of India Act, 1955.
Having its Corporate Office at
State Bank Bhavan, M.C. Road,
Nariman Point, Mumbai - 400 021.
2. State Bank of India Quarters
ARUN
Irla Society, Near Velankani Church,
RAMCHANDRA
SANKPAL Vile Parle (West),
Digitally signed by
Mumbai - 400 057. ..Applicants
ARUN
RAMCHANDRA
SANKPAL
Date: 2025.09.25
20:08:06 +0530 Versus
Amum Builders
a Partnership Firm, having its
Office at 256, LT Marg, Opposite
Commissioner's Office,
Mumbai - 400 002 ...Respondent
1/14
::: Uploaded on - 25/09/2025 ::: Downloaded on - 25/09/2025 22:30:14 :::
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Adv Sonal, with Hritika Shroff and Pranay Patil, i/b Ankit R. Tripathi,
for the Applicants.
Mr. Mayur Khandeparkar, i/b Neel Gala, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 25th SEPTEMBER 2025
ORDER:
1. This Application is preferred to stay the effect, operation and
implementation of the Mesne Profits Petition No. 3 of 2021 pending
before the Court of Small Causes at Bandra, Mumbai, arising out of the
judgment and decree passed by the Appellate Bench of the Court of
Small Causes in Appeal No. 12 of 2016 in T.E. & R. Suit No. 14/23 of
2008.
2. The Applicants are the tenants in respect of the Suit premises.
The Respondent-landlord instituted the Suit i.e., T. E. & R. Suit No.
14/23 of 2008 to regain the possession of the land situated at Irla
Society, Vile Parle (W), Mumbai ("the Suit property"). The Trial Court
dismissed the Suit by a judgment and decree dated 2nd May 2016.
3. In Appeal No. 12 of 2016, preferred by the Respondents, the
Appellate Bench partly allowed the Appeal and directed the Applicants
to handover vacant possession of the Suit premises.
4. Being aggrieved, the Applicants preferred Civil Revision
Application No. 98 of 2021. By an order dated 21 st July 2023, this Court
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passed ad-interim relief in terms of prayer clause (b) in the Civil
Revision Application, which reads as under:
"b) That pending the hearing and final disposal of this
Civil Revision Application, this Hon'ble Court be pleased to
stay the effect, operation and implementation of the
Judgment and Decree dated 26.02.2021 passed by the
Appellate Bench of the Hon'ble Small Causes Court in
Appeal No. 12 of 2016 in T.E. & R Suit No. 14/23 of 2008."
5. By a further order dated 28th November 2023, this Court directed
the Applicants to deposit interim compensation @ Rs.5,50,000/- per
month with effect from 1 st December 2007 and continue to deposit the
interim compensation at the said rate on or before the 15 th day of each
month.
6. Pursuant to the decree passed by the Appellate Court, the
Respondent-Plaintiff had filed Mesne Profits Petition No. 3 of 2021. On
21st October 2024, the Applicants filed an Application to stay the
proceeding in Mesne Profits Petition No. 3 of 2021 till the final disposal
of Civil Revision Application as this Court has stayed the execution,
operation and implementation of the decree by orders dated 21 st July
2023 and 28th November 2023.
7. By the impugned order dated 21st October 2024, the learned
Judge, Court of Small Causes rejected the Application observing that
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there was no stay to the proceedings in Mesne Profits Petition No. 3 of
2021.
8. Being aggrieved, the Applicants have taken out this Application in
Revision Application No. 98 of 2021.
9. An Affidavit in Reply is filed on behalf of the Respondent-Plaintiff
resisting the prayers in the Application. The substance of the resistance
put-forth by the Respondent is that the enquiry for determination of
mesne profit cannot be stayed as it is considered to be in the form of a
separate money suit. Stay can only be granted to the execution of the
decree so far as the delivery of possession of the Suit premises.
10. I have heard Ms. Sonal, the learned Counsel for the Applicants,
and Mr. Mayur Khandeparkar, the learned Counsel for the Respondent,
at some length. With the assistance of the learned Counsel for the
parties, I have perused the material on record.
11. Ms. Sonal, the learned Counsel for the Applicants, submitted that
the learned Judge, Court of Small Causes, has taken a very constricted
view of the matter. Laying emphasis on the prayer clause (b) of the
Revision Application (extracted above), Ms. Sonal would urge that this
Court has, by way of interim relief, stayed the effect, operation and
implementation of the decree passed by the Appellate Bench in its
entirety. It is, therefore, not open for the Respondent to contend that the
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stay operates only in respect of eviction of the Applicants pursuant to
the impugned decree.
12. Ms. Sonal would further urge that, the Applicants have been
depositing the interim compensation as determined by this Court. The
interest of the Respondent-Plaintiff is thus adequately protected. In the
event in Civil Revision Application, this Court sets aside the decree
passed by the Appellate Bench, time and effort put in the Mesne Profits
Petition would be wasted. Therefore, the impugned order deserves to be
quashed and set aside and the proceedings in Mesne Profits Petition No.
3 of 2021 deserve to be deferred till the final possession of the Civil
Revision Application lest anomalous situation would ensue, submitted
Ms. Sonal.
13. As against this, Mr. Khandeparkar, the learned Counsel for the
Respondent-Plaintiff, submitted that there is no error or infirmity in the
impugned order. The learned Judge has rightly recorded that the
proceeding in the Mesne Profits Petition have not been stayed. Taking
the Court through the provisions of Order XX Rule 12 of the Code of
Civil Procedure, 1908 ("the Code"), Mr. Khandeparkar would urge that
the right to apply for ascertainment of mesne profits accrues when the
Trial Court passes a decree for delivery of possession and orders
enquiry into the mesne profits. It is not necessary that the successful
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party shall wait till the disposal of the proceedings before the Appellate
Court/Revisional Court for determination of the mesne profits.
14. Any other view, according to Mr. Khandeparkar, would cause
grave prejudice to the Decree Holder as the Decree Holder would be
deprived of the fruits of the decree for an indefinite period if the
proceeding for the mesne profits were to be initiated only after the
decree for eviction has attained finality.
15. Mr. Khandeparkar would urge the exercise of ascertainment of
the mesne profits could proceed, however, the execution of the order to
pay the mesne profits may get deferred. To lend support to this
submission, Mr. Khandeparkar placed a very strong reliance on a
judgment of a learned Single Judge of this Court in the case of
Purushottam Bajranglal Agarwal & Anr Vs Nag Vastra Bhandar.1
16. I have given careful consideration to the submissions canvassed
across the bar, and carefully perused the material on record.
17. To begin with, it is necessary to note that interim relief granted
by this Court was in terms of prayer clause (b) (extracted above).
Evidently, in the said prayer clause the Applicants have prayed for stay
to the effect, operation and implementation of the Decree dated 26 th
February 2021 passed by the Appellate Bench. On a plain reading of the
order passed by this Court on 21st July 2023 and the further order dated
28th November 2023, in conjunction with the prayer clause (b)
1 1979 Mh.L.J. 87.
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(extracted above), one gets an impression that what has been stayed is
the effect, operation and execution of the decree as a whole.
18. Mr. Khandeparkar made a strenuous effort to dispel the aforesaid
apparent impression by canvassing a submission that the direction for
determination of the mesne profits need not be stayed though the
decree for possession is stayed. In the interregnum what can be stayed
is the implementation of the order to pay mesne profits and not the
ascertainment thereof, was the thrust of the submission of Mr.
Khandeparkar.
19. Few provisions of the Code are required to be noted to appreciate
the sustainability of the aforesaid submission. First, the provisions
contained in Order XX Rule 12 of the Code, which prescribe what a
decree for possession and mesne profits shall provide for. Rule 12 of
Order XX (Bombay amendment) reads as under:
"12 Decree or possession and mesne profits.--(1)
Where a suit is for the recovery of possession of
immovable property and for rent or mesne profits, the
Court may pass a decree--
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on
the property during the period prior to the institution of
the suit, or directing an enquiry as to such rent or mesne
profits;
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(c) directing an inquiry as to rent or mesne profits from
the institution of the suit until--
(i) the delivery of possession to the decree-holder, or
(ii) the relinquishment of possession by the judgment-
debtor with notice to the decree-holder through the
Court.
(2) Where an inquiry is directed under clause (b) or
clause (c) of sub-rule (1) above, a final decree in respect
of the rent or mesne profits shall be passed in accordance
with the result of such inquiry."
20. In the context of the controversy at hand, a correct reading of
Rule 12 of Order XX would imply that where a Court passes a decree for
possession of immovable property, the decree may provide for, firstly,
the delivery of possession of the property, secondly, for the rent or
mesne profits which have accrued on the property during the period
from the institution of the Suit or an eqnuiry as to such past rent or
mesne profits and, thirdly, an enquiry as to future rent or mesne profits
till the delivery of possession to the decree holder or relinquishment of
possession by the judgment debtor.
21. A decree for delivery of possession of immovable property is, in a
sense, a composite decree for possession of the property as well as the
past and future mesne profits from the time the possession of the
Judgment Debtor becomes wrongful. A direction for determination of
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the mesne profits stems from the very decree for delivery of possession
of the Suit property. A determination that the possession of the
judgment debtor has become wrongful is a sine qua non for a claim for
mesne profits. To put it in other words, a claim for mesne profits is a
necessary adjunct of a decree for possession upon a declaration that the
possession of the judgment debtor became wrongful.
22. What can be stayed by the Appellate Court? The provisions of
Order XLI Rule 5 of the Code deserve to be noted. It reads as under:
5. Stay by Appellate Court.--(1) An appeal shall not
operate as a stay of proceedings under a decree or order
appealed from except so far as the Appellate Court may
order, nor shall execution of a decree be stayed by
reason only of an appeal having been preferred from the
decree; but the Appellate Court may for sufficient cause
order stay of execution of such decree.
Explanation.--An order by the Appellate Court for the
stay of execution of the decree shall be effective from
the date of the communication of such order to the
Court of first instance, but an affidavit sworn by the
appellant, based on his personal knowledge, stating that
an order for the stay of execution of the decree has been
made by the Appellate Court shall, pending the receipt
from the Appellate Court of the order for the stay of
execution or any order to the contrary, be acted upon by
the Court of first instance.
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23. Rule 5(1) is in three parts. The first part of the sub-Rule (1) of
Rule 5 is of material significance. It provides that an Appeal shall not
operate as a stay of proceedings under a decree or order appealed from,
except so far as the Appellate Court may order. The second part further
clarifies that the execution of the decree need not be stayed only for the
reason that an appeal has been filed. The third part of sub-Rule (1)
empowers the Appellate Court to order stay of execution of the decree
for a sufficient cause. The first part would thus indicate that the
Appellate Court is empowered to stay the proceedings under a decree or
order Appealed from in its entirety or specific components thereof.
Where a decree is passed for delivery of possession of immovable
property and an enquiry into the past or future mesne profits is also
ordered, the proceeding for the determination of the mesne profits fall
within the ambit of the expression, "proceedings under a decree or
order appealed from" which the Appellate Court is empowered to stay,
like the execution petition filed for delivery of possession.
24. At this stage a reference may be made to the decision in the case
of Purushottam Bajranglal Agarwal (Supra), on which a very strong
reliance was placed by Mr. Khandeparkar.
25. In the said case a learned Single Judge of this Court considered
the question as to 'when right to apply of ascertainment of mesne
profits arises when a preliminary decree directs an enquiry as to future
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mesne profits from the institution of the suit under Order XX Rule 12
(1)(c) of the Code'. The facts of the said case were such that, when the
Judgment Debtor filed an Application in the Second Appeal for stay of
the decree, the High Court had granted stay as regards the delivery of
possession. A further direction was given that enquiry into the mesne
profits shall not be stayed.
26. In the aforesaid backdrop, the learned Single Judge held that
there was no clear indication in the provisions of Order XX Rule 12(1)
(c) that the right to apply for mesne profits arises only after the
happening of one of the events mentioned in Order XX Rule 12 (1)(c) of
the Code. The provisions do not prohibit the Decree Holder from
applying for ascertainment of the mesne profits or the provisions do
not compel the Decree Holder to wait until any of the three events
contemplated by Clause (c)(iii) occurs.
27. The learned Single Judge went on to observe that the direction to
judgment Debtor to deposit certain amount towards mesne profits
during the pendency of the Appeal would not also be an impediment for
ascertaining the mesne profits. Such a direction had been given because
the Judgment Debtor was allowed to continue in possession of the Suit
premises. One of the objects of such direction, is to ensure that the
Decree Holder, if ultimately he succeeds, is not required to spend
further time in recovery of the amount due to him by way of mesne
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profits. Therefore, the direction requiring the Judgment Debtor to
furnish security or to deposit certain amount towards mense profits
would not disentitle the Decree Holder from following the remedy of
having the mesne profits ascertained.
28. The ratio of the aforesaid decision is required to be appreciated in
the light of the facts of the said case. A material distinguishing factor in
the said case was that, though the Appellate Court had stayed the
decree to the extent of delivery of possession, a direction was issued
that enquiry into mesne profits shall not be stayed. That brings into play
the power of the Appellate Court under Order XLI Rule 5(1) of the Code
(extracted above). The stay to the execution of the decree operates only
so far as the Appellate Court directs.
29. In that case, the Appellate Court exercised the power to stay the
execution of the decree only to the extent of delivery of possession and,
therefore, all the proceedings under the decree cannot be said to have
been stayed. That is not the case at hand. In the instant case, this Court
has granted stay to the effect, operation and implementation of the
decree passed by the Appellate Bench as a whole. Resultantly all the
proceedings under the decree which is impugned in this Revision
Application stand stayed.
30. Undoubtedly, in a given case, it would be open for the Appellate
Court or Revisional Court to stay the execution and operation of the
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impugned decree to the limited extent of delivery of possession. In that
event, the proceeding for ascertainment of mesne profits can
legitimately proceed unhindered. However, where the decree as a
whole is stayed, like the case at hand, it may not be permissible to
restrict the scope of the stay order to the delivery of possession of the
property only.
31. Lastly, the submission of Ms. Sonal that, in the event, the decree
is set aside by this Court the entire proceeding before the Trial Court in
Mesne Profits Petition No. 3 of 2021 would be rendered futile, cannot
be said to be unfounded. Apart from the time, efforts and resources of
the parties, even the precious judicial time would be wasted. Therefore,
looking from any perspective, the continuation of the proceedings in
Mesne Profits Petition No. 3 of 2021 appears to be unsustainable.
Resultantly, the Interim Application deserves to be allowed.
32. Hence the following order:
:ORDER:
(i) The Application stands allowed.
(ii) The proceedings in Mesne Profits Petition No. 3 of
2021 and Execution Application No. 98 of 2023 shall
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stand stayed until the final disposal of the Civil Revision
Application.
No costs.
[N. J. JAMADAR, J.]
