[Cites 2, Cited by 0]
Madhya Pradesh High Court
Kamlesh Jain vs Bhurelal Jain on 5 January, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:112
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 5 th OF JANUARY, 2026
MISC. PETITION No. 6328 of 2025
KAMLESH JAIN AND OTHERS
Versus
BHURELAL JAIN AND OTHERS
Appearance:
Shri Nirmal Sharma - learned Counsel for petitioners.
ORDER
Present miscellaneous petition under Article 227 of Constitution of India has
been filed by petitioners being dissatisfied with order dated 05.08.2025 passed by
District Judge, Mehgaon, District Bhind in Regular Civil Appeal No.42 of 2023,
whereby application filed by petitioners under Order 41 Rule 5 of Code of Civil
Procedure was partly allowed. By said order, execution of decree relating to possession
was stayed, whereas execution of decree relating to mesne profits was not stayed,
arising out of judgment and decree passed in RCS No. 58-A of 2014 by Second Civil
Judge, Senior Division, Mehgaon, District Bhind in favour of plaintiff-respondent
No.1.
2. Brief facts of case are that respondent No.1 filed a civil suit for declaration,
possession and mesne profits in respect of shops situated on land bearing survey Nos.
1035 and 1036 at Village Soni, Tehsil Mehgaon, District Bhind. It was pleaded that
said land was purchased through registered sale deeds and after renumbering of khasra
numbers, plaintiff's name was duly recorded in revenue records. It was further pleaded
that constructions were raised on land and plaintiff was lawful owner.
3. Defendants contested suit by filing written statements alleging that land was
purchased benami in name of plaintiff's predecessor. It was further alleged that
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construction was raised by their predecessor and that they were in actual possession for
several decades.
4. After completion of pleadings and evidence, trial court decreed suit in favour
of plaintiff by judgment and decree dated 31.07.2023, directing restoration of
possession and payment of mesne profits at rate of Rs.1,000/- per month.
5. Being aggrieved by judgment and decree, petitioners preferred Regular Civil
Appeal No.42 of 2023 along with application under Order 41 Rule 5 of CPC seeking
stay of execution. Appellate Court, by impugned order dated 05.08.2025, stayed
execution of decree relating to possession subject to furnishing of surety and
undertaking, but declined to stay execution of decree relating to mesne profits.
6. Assailing impugned order, learned counsel for petitioners contended that once
appellate court found a prima facie case in favour of appellants and granted stay of
dispossession, decree ought to have been stayed in its entirety. It was further contended
that question of entitlement to mesne profits is intrinsically connected with question of
ownership and possession, which is pending adjudication in appeal. Non-stay of mesne
profit portion of decree would render appeal illusory and cause irreparable prejudice to
petitioners. Petitioners have expressed willingness to comply with all conditions
imposed by Court and are ready to secure mesne profit amount; therefore, impugned
order deserves modification.
7. Looking to nature of case, this Court does not deem it necessary to issue notice
to respondents.
8. Heard learned counsel for petitioners and perused impugned order as well as
material available on record.
9. It is evident that appellate court has already found sufficient grounds to protect
petitioners from dispossession during pendency of appeal. Question of mesne profits is
directly dependent upon final determination of rights of parties regarding ownership
and possession of disputed property. Permitting execution of mesne profit decree
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during pendency of appeal may result in serious prejudice to petitioners and may
frustrate very purpose of appeal. At same time, interest of respondent-plaintiff also
requires protection. In facts and circumstances of case, ends of justice would be met by
staying entire operation of judgment and decree, subject to safeguarding mesne profit
amount.
10. Accordingly, impugned order dated 05.08.2025 passed by District Judge,
Mehgaon, District Bhind in Regular Civil Appeal No.42 of 2023 is set aside to extent it
declines stay of mesne profit portion of decree. It is directed that petitioners shall
deposit entire mesne profit amount as determined by learned Trial Court within period
of two months from date of this order. Deposited amount shall be kept in a nationalized
bank and shall not be withdrawn by respondent(s) till final disposal of appeal. In event
of appeal being decided in favour of petitioners, they shall be entitled to refund of said
amount in accordance with law.
11. Subject to aforesaid condition, execution of judgment and decree dated
31.07.2023 passed in RCS No.58-A of 2014 shall remain stayed during pendency of
appeal.
12. Miscellaneous petition stands allowed in above terms. No order as to costs.
(HIRDESH)
JUDGE
MKB
