Madhya Pradesh High Court

Smt. Charmibai vs Ramayan Prasad on 1 May, 2024

                                                             1
                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       SA No. 944 of 2017
                                       (SMT. CHARMIBAI AND OTHERS Vs RAMAYAN PRASAD AND OTHERS)

                         Dated : 01-05-2024
                               Shri Shreyash Pandit - Advocate for the appellants.

                               Shri Vinod Kumar Dubey - Advocate for the respondent no.1.

Shri Surdeep Khampariya - P.L. for the State.

Heard on IA no.15764/2023 an application under Order 41 Rule 5 of the CPC for restraining the execution proceedings initiated against the appellants for

recovery of mesne profits.

IA is supported by an affidavit of appellant no.2 Veeran. Learned counsel for the appellants submits that this appeal has already been admitted on the substantial question of law on 20/2/2019 and till next date of hearing status quo order has been passed. Therefore, recovery proceedings by way of execution regarding mesne profits cannot be continued. He further undertakes to deposit whole of amount of accrued mesne profits, if second appeal fails and prays for the order to restrain the executing court in this regard.

Learned counsel for the respondent no.1 submits that concurrent finding

has been given by the trial Court and first appellate Court regarding entitlement of the respondents for the mesne profits. In such a situation, recovery of mesne profits cannot be stayed and to bolster his submissions, he has relied upon the judgement of the Apex Court in the case of M/s Martin & Harris Private Limited & Anr. vs. Rajendra Mehta & Ors. passed in Civil Appeal No.4646-47/2022 on 6/7/2022.

Heard learned counsel for the parties and perused the record in the light of the judgment relied upon by the learned counsel for the respondent no.1.

The second appeal has been admitted on the substantial question of law even against the concurrent findings of the courts below and the order of status quo has been passed. Mesne profits being pecuniary benefit can be recovered even after disposal of the second appeal. Judgment relied upon by the learned counsel for the respondent no.1 is distinguishable as it has been against the final order.

In the light of the aforesaid factual matrix and undertaking on behalf of the appellants, IA no.15764/2023 filed under Order 41 Rule 5 of the CPC is allowed with the direction that execution of judgment and decree dated 23/4/2023 passed by IInd Additional District Judge, Maihar, Distt. Satna in

Civil Appeal No.69A/2016 with regard to the mesne profits, shall remain stayed till final disposal of this appeal.

List the case for final hearing in the month of July, 2024.

(BINOD KUMAR DWIVEDI) JUDGE

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