Ladu Lal vs Lrs Of Bhanwar Lal
2021 Latest Caselaw 15811 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3178/2020

Ladu Lal S/o Shri Sohan Lal Ji Bangar, Aged About 70 Years, R/o Behind Jan Mandir, Bangar Transport, Bhopalganj, Bhilwara (Rajasthan).

----Petitioner Versus

1. Lrs Of Bhanwar Lal, S/o Shri Payar Chand Ji Suriya, R/o Bhilwara, Since Deceased Through His Legal Representative-

2. Babu Lal S/o Late Shri Bhanwar Lal Ji Suriya, R/o 82, Maharana Pratap Marke, Acharya Tulsi Marg, Bhopalgang, Bhilwara (Rajasthan).

                                                                ----Respondents


For Petitioner(s)        :     Mr. Sanjay Nahar
For Respondent(s)        :     Mr. Dhanesh Saraswat



                    JUSTICE DINESH MEHTA

                                    Order

20/10/2021

1. By way of the present writ petition, petitioner has challenged

order dated 20.09.2019, passed by the learned Additional District

Judge, Bhilwara hereinafter referred to as the Appellate Court.

2. The precise facts relevant for the present purposes are that

the plaintiff- respondent herein had filed a suit for redemption of

mortgage which was decreed by the Trial Court vide order dated

19.04.2018.

3. The present petitioner preferred an appeal against the above

judgment and decree along with a stay application under Order

XLI Rule 5 of the Code of Civil Procedure.

(2 of 3) [CW-3178/2020]

4. The Appellate Court, while allowing the stay application,

directed the present petitioner to pay the mesne profit of

Rs.15,000/- per month, while protecting his possession.

4. While maintaining that the amount of mesne profit fixed by

the Appellate Court is excessive, Mr. Nahar, learned counsel for the

petitioner argued that while deciding the stay application vide

order dated 20.09.2019, the Appellate Court has made certain

observations about admissibility of the documents which ought not

to have been made at the stage of deciding stay application.

5. Mr. Saraswat, learned counsel for the respondents at the

outset submitted that the mesne profit fixed by the Appellate

Court (Rs.15,000/-), is not at all excessive and the same is in

consonance with the rent which a property situated in the prime

area of Bhilwara can fetch.

6. He further argued that the observations made by the

Appellate Court on 20.09.2019 are prima facie obiter or

observation of the Court and therefore can not bind the Court,

when the appeal is finally decided.

7. Having perused the record of the case and upon having

heard learned counsel for the parties, this Court does not find any

reason to interfere in the present writ petition.

8. The writ petition is disposed of with an observation that the

Appellate Court would not feel bound by the observations made in

the order dated 20.09.2019, which in any event are interim in

nature.

9. So far as amount of mesne profit is concerned, needless to

clarify that in case the appeal is allowed or the decree is otherwise

(3 of 3) [CW-3178/2020]

modified, the Appellate Court will issue clear directions in relation

to entitlement of rival parties in relation to the mesne profit.

10. In other words, the Appellate Court will require the plaintiff/

respondent to restore the amount of mesne profit paid by the

appellant/ petitioner herein, if the appeal is allowed and decree

dated 19.04.2018 is set aside.

11. Stay application also stands disposed of accordingly.

(DINESH MEHTA),J

8-pooja/-

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