Gujarat High Court
Pankaj Yashvantlal Parikh Through Poa ... vs Hemantbhai Yashvantbhai Parikh on 13 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15093 of 2025
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PANKAJ YASHVANTLAL PARIKH THROUGH POA VISHAL MUKESH
PARIKH
Versus
HEMANTBHAI YASHVANTBHAI PARIKH
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Appearance:
MR MANISH S SHAH(5859) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/11/2025
ORAL ORDER
[1] This petition under Article 227 of the Constitution of
India is filed by the petitioner - original plaintiff, assailing the
order dated 21st July 2025 passed by the learned 5th Additional
District Judge, Panchmahal at Godhra below Exhibit 6 in Regular
Civil Appeal No.11 of 2024, whereby the Appellate Court has
stayed the execution of the judgment and decree dated 1st January
2024 passed by the learned Trial Court in Regular Civil Suit No.244
of 2013 directing the respondent - original defendant to hand over
vacant and peaceful possession of the suit property to the
petitioner.
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[2] The brief facts necessary for adjudication of the present
petition are as under:
[2.1] The petitioner - original plaintiff instituted Regular
Civil Suit No.244 of 2013 seeking a decree for possession and
mesne profits, alleging that the respondent - original defendant
was in unauthorised occupation of the suit property.
[2.2] By judgment and decree dated 1st January 2024, the
learned Trial Court partly allowed the suit, directing the
respondent to hand over vacant and peaceful possession of Survey
No.18/298 and restraining the respondent from transferring the
suit property.
[2.3] Aggrieved by the said judgment, the respondent
preferred Regular Civil Appeal No.11 of 2024 before the learned
District Court, Panchmahal, along with an application below
Exhibit 6 seeking stay of execution of the decree.
[2.4] The petitioner has also filed a separate Regular Civil
Appeal challenging the Trial Court's refusal to grant mesne profits,
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however with an application for condonation of delay being Civil
Misc. Application No.9 of 2025, which remains pending.
[2.5] Upon hearing both sides, the Appellate Court, vide
order dated 21st July 2025 below Exhibit 6 in Regular Civil Appeal
No.11 of 2024, stayed the execution and implementation of the
judgment and decree dated 1st January 2024 passed in Regular
Civil Suit No.244 of 2013.
[3] Being aggrieved and dissatisfied with the aforesaid, the
petitioner herein - original plaintiff has approached this Court by
way of this petition under Article 227 of the Constitution of India
for the appropriate writ, order and directions.
[4] Heard learned advocate Mr. Manish Shah for the
petitioner - original plaintiff.
[5] Learned advocate Mr. Shah for the petitioner herein,
while challenging the impugned order, has made the following
submissions:
[5.1] Learned advocate Mr. Shah submitted that the
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impugned order of the Appellate Court is ex facie illegal, unjust,
and contrary to law, and therefore warrants interference.
[5.2] He argued that the petitioner, being the decree holder,
has been held entitled to possession, whereas the respondent has
been found to be in illegal occupation of the suit property. In such
circumstances, the Appellate Court ought not to have granted an
unconditional stay of the decree. According to Mr. Shah,
appropriate conditions should have been imposed while granting a
blanket stay of the Trial Court's judgment and decree.
[5.3] Reliance was placed on the decision of the Hon'ble
Supreme Court in Martin & Harris Private Limited v. Rajendra
Mehta, (2022) 8 SCC 527, to contend that once a decree for
possession is passed, the Appellate Court must fix reasonable mesne
profits equivalent to market rent for the period during which the
judgment-debtor continues in possession. As the respondent is
admittedly in illegal possession, the Appellate Court ought to have
fixed such mesne profits while granting stay. Mr. Shah therefore
submitted that the unconditional stay granted by the Appellate
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Court is unsustainable and deserves to be quashed.
[6] By making above submissions, learned advocate Mr.
Shah for the petitioner - original plaintiff requested this Court to
allow the present petition by quashing and setting aside the
impugned order in the interest of justice.
[7] In view of the submissions advanced on behalf of the
petitioner and upon examining the material on record, the issue
that arises for consideration is whether the learned Appellate Court
erred in granting an unconditional stay on the execution and
implementation of the decree passed by the learned Trial Court.
[8] So as to decide the aforesaid question, certain facts
deserve to be taken note of which are as under:
[8.1] The petitioner - original plaintiff instituted Regular
Civil Suit No.244 of 2013 seeking declaration, possession, and
mesne profits. The learned Trial Court partly allowed the suit by
granting declaration and possession of the suit property, while
declining the relief of mesne profits.
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[8.2] Aggrieved by different parts of the judgment, both
parties preferred separate appeals before the learned District Court.
The petitioner filed a Regular Civil Appeal along with Civil Misc.
Application No.9 of 2025 seeking condonation of delay, challenging
the denial of mesne profits, which is still pending. The respondent
filed Regular Civil Appeal No.11 of 2024, in which the Appellate
Court, on an application at Exhibit 6, granted an interim stay on
the execution of the judgment and decree passed by the Trial
Court.
[9] Upon consideration of the above facts, it emerges that
the respondent - original defendant promptly invoked the statutory
remedy of appeal under Section 96 of the Civil Procedure Code,
challenging the judgment and decree of the Trial Court. There is
nothing on record to suggest that the filing of the appeal was
intended to delay the proceedings. It is also undisputed that the
petitioner - original plaintiff has not initiated execution
proceedings.
In this background, when the petitioner's own appeal seeking
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mesne profits is still pending at the stage of delay condonation, the
contention that the Appellate Court ought to have fixed mesne
profits while granting stay in the respondent's appeal cannot be
accepted. Acceptance of such a contention would, in effect, amount
to granting the very relief sought by the petitioner in his pending
appeal, even before the delay is condoned and the appeal is heard
on merits. The issue of mesne profits is squarely pending before the
Appellate Court and can appropriately be adjudicated at the time of
final disposal and / or even at the interim stage, if any stay
application is filed by the petitioner. Therefore, non-grant of mesne
profits at this stage does not cause any prejudice to the petitioner.
[10] As regards the reliance placed on Martin & Harris
Private Limited (supra), the said judgment is distinguishable on
facts. In that case, the decree-holder had initiated execution
proceedings, and there was a clear attempt to delay execution.
Further, the dispute arose out of a landlord-tenant relationship,
where rent and fair market value were already determined. In
contrast, the present matter does not emanate from a landlord-
tenant relationship, nor is there any pre-existing rent or agreed
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consideration that can form the basis for fixing mesne profits at the
interim stage. Hence, the principle laid down in Martin & Harris
cannot be mechanically applied to the present case.
[11] In view of the aforesaid and bearing in mind the limited
supervisory jurisdiction under Article 227 of the Constitution of
India, no perversity, illegality or jurisdictional error is found in the
impugned order of the Appellate Court. The order appears to be
just, proper, and does not warrant interference.
[12] Present petition is accordingly dismissed with no order
as to costs.
(NIRAL R. MEHTA,J)
CHANDRESH
