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PETITIONER: M/S. MARSHALL SONS & CO.(I) LTD.

       Vs.

RESPONDENT: M/S.SAHI ORETRANS (P) LTD. AND ANR.

DATE OF JUDGMENT:       29/01/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

DER         Leave granted.

     This  appeal  has  been   filed  under  the  following circumstances.   The present appellant had obtained a decree for  eviction in Rent Suit No.  594/5333 of 1962 as early as on  16th  June, 1969.  The suit was filed against  (i)  M/s. United Artists Corporation (Original Defendant No.  1), (ii) The   Western  India  Theaters   Ltd.   (iii)  M/s.    Halda Engineering  Co., and (iv) Anti Friction Bearing Corporation Limited  (Original  Defendant Nos.  2,3 and 4  respectively) for  obtaining vacant possession of the said premises on the ground that original defendant No.  1 had failed to pay rent for  a period of six months and for unlawful subletting  the premises.    The  trial  court   decreed  the  suit  against defendant  No.1.   On appeal being Appeal No.  534 of  1969, the  decree against original defendant No.  1 was  confirmed and  the decree of dismissal against defendant Nos.  2 to  4 was  also confirmed.  Against that order appellant preferred Writ  Petition No.  1695 of 1979 before the High Court.  The High  Court  confirmed  the   decree  against  the  original defendant  No.   1 and the order passed by the  trial  court dismissing  the  suit  against  them was  also  reversed  by passing  a  decree against original defendants 2, 3  and  4. Against  that  judgment and decree M/s.   Halda  Engineering Company  filed  special  leave petition before  this  Court. That  petition  was  dismissed  on  4th  May,  1984  with  a direction  that  decree shall not be executed on  or  before 31st  December, 1984 on condition that petitioner shall file an undertaking on the terms stated therein.  For some reason or  other  the said decree has not been executed  until  and application  was filed under Order XXI Rule 22 of the C.P.C. and  in  that  application  the Court  passed  an  order  on 9.9.1991  for  execution of the decree and for  delivery  of possession.   The present respondent obstructed the delivery of possession on the ground that he was in possession of the property.

     Pending  Obstruction  Application,   respondent  filed Declaratory Suit being R.A.D.  Suit No.  2152 of 1991 in the Court  of  Small Causes at Bombay for a declaration  of  his tenancy  rights by contending that there was a tenant of the premises since 1973 through M/s.  Halda Engineering Company. In  the said suit, the present appellant (judgment creditor) appeared  and  indicated  the fact that how the  decree  for eviction  granted  in his favour had not been  executed  and prayed   that   possession  should  be  delivered   to   him

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immediately  and  also  respondent  should  be  directed  to deposit  mesne  profits from 1.1.1984 till 30.6.1996 at  the prevailing  market rent.  The trial court did not accept the prayer  for  handing  over   possession,  but  directed  the respondent  who is the plaintiff in the suit, that he should pay  at  the  rate of Rs.443.93 p.  per month for  the  said period as mesne profit.  The appellant carried the matter to the  High  Court  unsuccessfully.  Against that  order,  the present  appeal is filed by special leave.  When this matter was   pending  before  this   Court,  parties  took  several adjournments  to  get the matter amicably settled.   However till today the matter has not been amicably settled.

     From  the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not  being executed for some reason or the other, we do  not think  it  proper at this stage to direct the respondent  to deliver the possession to the appellant since the suit filed by  the  respondent  is  still pending.   It  is  true  that proceedings  are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the  unwary.   Because of the delay unscrupulous parties  to the  proceedings  take undue advantage and person who is  in wrongful  possession  draws delight in delay in disposal  of the   cases   by  taking   undue  advantage  of   procedural complications.  It is also known fact that after obtaining a decree  for possession of immovable property, its  execution takes  long  time.  In such a situation for  protecting  the interest  of  judgment  creditor, it is  necessary  to  pass appropriate orders so that reasonable mesne profit which may be  equivalent to the market rent is paid by a person who is holding  over the property.  In appropriate cases, Court may appoint  Receiver and direct the person who is holding  over the  property  to  act as an agent of the  Receiver  with  a direction  to  deposit  the  royalty  amount  fixed  by  the Receiver  or  pass  such  other order  which  may  meet  the interest of justice.  This may prevent further injury to the plaintiff  in  whose favour decree is passed and to  protect the property including further alienation.

     In  the present case, suit was filed in November, 1962 on  the  ground  as stated above including the  ground  that there  was unlawful subletting.  The High Court has  decreed the  suit  on that ground.  Special Leave Petition filed  by M/s.   Halda Engineering Co.  has dismissed.  Now, it is the contention of the respondent that they got possession of the property  admeasuring  2500  sq.    ft.   from  M/s.   Halda Engineering  Co.   in or about 1973 and thereafter  in  1978 entered   into  a  partnership   agreement  with   M/s.Halda Engineering Co.

     Having  considered  the  relevant submissions  of  the parties including the submissions with regard to market rent and  without  expressing  any opinion on the merits  of  the contentions  of the parties in the pending suit, we think it appropriate  to  dispose of this matter with  the  following directions:

     (1)  That  the  suit  in question be  disposed  of  as expeditiously  as possible, preferably within one year  from today;   (2)  The respondents are directed to pay the  mesne profits/compensation  at  the rate of Rs.10/- per  sq.   ft. from  1984 till today and at the rate of Rs.20/- from  today till  the disposal of the suit.  While making this  payment,

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the  payments already made shall be adjusted.  So far as the arrears  are  concerned,  it  be paid in  12  equal  monthly instalments.

     The appeal is disposed of accordingly.  No order as to costs.