Holding

The respondents must pay mesne profits at Rs. 10 per sq ft from 1984 to the date of the order and Rs. 20 per sq ft thereafter, and possession cannot be ordered until the pending suit is resolved.

Summary

Marshall Sons & Co. (I) Ltd., the landlord, obtained a decree for eviction against four defendants for non‑payment of rent and unlawful sub‑letting. The decree was not executed, and the respondents continued to occupy the premises. The respondents later filed a declaratory suit claiming tenancy rights and the trial court ordered them to pay mesne profits of Rs. 443.93 per month for the period 1 Jan 1984 to 30 Jun 1996. On appeal, the Supreme Court held that, given the pending suit, possession could not be ordered, but the respondents must pay mesne profits at Rs. 10 per sq ft for the period from 1984 to the date of the order and Rs. 20 per sq ft thereafter, payable in instalments and adjusted against any prior payments. The Court also directed that the pending suit be disposed of within a year. No costs were awarded.

Issues considered

Whether the decree holder is entitled to mesne profits when the decree has not been executed and the respondent remains in possession.
What rate of mesne profits is appropriate in the circumstances.
Whether the court can order delivery of possession while a suit concerning tenancy rights is pending.

Legislation cited

Code of Civil Procedure, 1908s. 2(12), s. Order XXI Rule 22

Subjects

evictionmesne profitsdecree executionlandlord‑tenantsub‑lettingdelay in proceedingsmarket rentCPC

Judgment

MIS. MARSHALL SONS AND CO. (I) LTD. A
v.
MIS SAHi ORETANS (P) LTD. AND ANR.

JANUARY 29, 1999

[G.B. PATTANAIK AND M.B. SHAH, JJ.) B

Code of Civil Procedure, 1908 : Section 2( 12)--Mesne profits--
Reasonableness of-Delay in Court Proceedings-Need for protection of in-
terest of decree holder-Eviction suit filed by appellant landlord against four
defendants-Grounds-Failure to pay rent and sublettin/j--Decree granted by
Trial Court against defendant No.I only upheld by the Appellate Court-High
c
Court granted decree against all the four defendants-Special Leave Petition
filed by one of the defendants-Petition dismissed by this Court-Direction
that decree shall not be executed on or before 31st December, 1984-However,
decree in favour of appellant not executed-Thereafter, suit filed by respon-
dent claiming tenancy rights through one of the original defendants-ln this D
suit appellant landlord praying for possession and mesne profits from 1.1.1984
to 30.6.1996-Direction by Trial Court to pay mesne profits at the rate of Rs.
443.93 p. per month-Appeal prefe"ed by appellant before High Court dis-
missed-Appeal before this Court-Held, Respondents should pay the mesne
profits/compensation at the rate of Rs. 10 per sq. ft. from 1984 till date of this
E
order and at the rate of Rs. 20/- thereafter till the disposal of the suit.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 420 of
1999.

From the Judgment and order dated 17.11.97 of the.Bombay High F
Court in W.P. No. 5230 of 1997.

D.A. Dave, Gopal Jain, Mrs. Nandini Gore and Mrs. M. Karanjawala
for the Appellant.

T.R. Andhyarujina, H.N Salve, Ms. Indu Malhotra, Trideep Pais, Ms. G
Madhu and Ms. Anjolie Singh for the Respondents.

The following Order of the Court was delivered :

Leave granted. This appeal has been filed under the following cir-
cumstances. The present appeal had obtained a decree for eviction in Rent H
311
'
312 SUPREME COURT REPORTS (1999) 1 S.C.R.

A 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
B 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.
C 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 the judgment and
decree M/s. Halda Engineering Company filed special leave petition before
D 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
E the decree and for delivery of possession. The present respondent
obstructed tile delivery of possession on the ground that he was in posses-
sion of the property.

Pending Obstruction Application, respondent filed Declaratory Suit
F being R.A.D. Suit No. 2152of1991 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 Gudgment 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
G him 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
H appellant carried the matter to the High Court unsuccessfully. Against that
MARSHALL SONS AND CO. v. SAHi ORETANS (P) LID. 313

.-" order, the present appeal is filed by special leave. When this matter was
pending before this Court, parties took several adjournments to get the
A

matter amicably settled. However, till today the matter has not been
......
amicably settled.

From the narration of the facts, though it appears to us, prim a f acie,
that a decree in favour of the appellant is not being executed for some B
-,; 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 c
legal trap to the unwary. Because of the delay unscrupulous parties to the
proceedings take undue advantage and person who is in wrongful posses-
sion 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
D
creditor, it is necessary to pass appropriate order 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
E

--., decree is passed .and to protect the property including further alienation.

In the present case, suit was filed in November, 1962 on the ground F
. 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 conten-
tion 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 G
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, H
\
314 SUPREME COURT REPORTS (1999] 1 S.C.R.
A we think it appropriate to dispose of this matter with the following direc-
tions:

(1) That the suit in question be disposed of as expeditiously as
possible, preferably within one year from today;

B (2) The respondents are directed to pay the mesne profits/com-
pensation 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, the payments already made
shall be adjusted, So far as the arrears are concerned, it be
paid in 12 equal monthly instalments.
c
The appeal is dispo~ed of accordingly. No order as to costs.

T.N.A. Appeal disposed of.