Judgment:
A.L. Bahri, J.
1. The matter in controversy is covered by the decisions of this Court.
2. Baldev Parshad filed a civil suit for mandatory injunction directing Kishna Chand and others to put him in possession of 8 rooms of the house. The suit was decreed on September 19, 1983 by the trial Court. Kishan Chand and others challenged the said decree before the District Judge who passed interim order staying operation of the decree subject to furnishing security for mesne profits to the satisfaction of the Executing Court. In response thereto two securities to the extent of Rs. 10,000/- each as asked by the Executing Court were furnished by Kishan Chand and others. The appeal was finally dismissed by the District Judge on April 12, 1985 and subsequently a regular second appeal filed by the defendants also failed. Thereafter possession was delivered to the present petitioner.
3. Baldev Parshad in the executing Court applied under Section 145 of the Code of Civil Procedure for recovery of mesne-profits as per security furnished. The mease-profits were claimed at the rate of Rs. 200/- per month for the period from November 19, 1985 to October 26, 1985. In all a sum of Rs. 4,600/- was claimed as mesne profits. The application was contested and the following issues were tried by the Executing Court :--
1. Whether the application is not maintainable OPR
2. Whether the respondents are liable to pay Rs. 4,600/-as mesne profits to the applicant under the surety bond dated 1-11-1983?OPA
3. Relief.
4. Issue Nos. 1 and 2 were decided together. It was held that the application was not maintainable. It was further held that in the suit itself the plantiff had claimed mesne profits at the rate of Rs. 100/-per mesem. The same, however, stood declined. The application was dismissed. Baldev Parshad has come up in revision petition.
5. The decision of the Executing Court that the application under Section 145 of the Code of Civil Procedure was not maintainable cannot be sustained in view of two decisions of this Court. In Naurant Singh v. Teja Singh and Ors., (1976) 78 P. L. R. 96, it was held that the appellate Court bad inherent jurisdiction under Section 151 of the Code of Civil Procedure to demand security for payment of mesne-profits when the appellant (in that case) had applied for stay of his dispossession in execution of the decree. Hence, the stay order demanding security for mesne profits-should be taken and deemed to have been passed under inherent powers. When the said order was passed under the inherent powers and the security bond was executed in. pursuance there, it could be executed summarily in execution proceedings without having recourse to a fresh suit. The said decision was followed in Teja Singh v. Amar Singh, (1986-2) 90 P. L. R. 359.
6. In Naurant Singh's case (supra) it was further observed that since security was furnished to the extent of Rs. 10,000/- per annum in application under Section 145 of the Code of Civil Procedure the said amount could be recovered in execution proceedings itself. In the present case the security was furnished to the tune of Rs. 10,000/-. Thus to the extent of Rs. 10,000/- the petitioner could recover the amount on application under Section 145 of the Code of Civil Procedure. However, the petitioner only claim in all a sum of Rs. 4,600/- although claiming the same at the rate of Rs. 200/- per mensem.
7. On the other hand learned counsel for the respondent has referred to there decisions which were relied upon before the trial Court i.e.. The Central Board of Industries and Commerce, New Delhi and Anr. v. Shri Sham Lal Gupta, 1976 R.C.R. 224, Veermachaneni Gangadhararao v. Kanuri Venkateswara Rao and Ors., A. I. R. 1974 A. P. 289. He has also relied upon decision of this Court in Kala Singh and Ors. v. Sant Lal and Anr., (1989-2) 96. P. L. R. 683. It is not necessary to refer to the first two cases, which are otherwise distinguishable, as there are decisions of this Court on the subject. In Kala Singh's case Tej Ram's case, referred to above was relied upon and approved. It was only clarified that for the claim of mesne profits for the period after decision of the appeal the matter should be decided separately. However the amount of mesne profits during the period the stay order remained in operation, could be recovered on application under Section 145 of the Code Civil Procedure filed before the executing Court.
8. In the present case mesne profits from October 24, 1983 to the date of the decision of the appellate Court i.e. April 12, 1985 could legitimately be claimed by the petitioner in the application filed under Section 144 of the Code of Civil Procedure. Baldev Parshad DHW 1 deposed that there were 8 rooms of the house in dispute and he could fetch Rs. 400/- per month although be claimed Rs. 200/- per month. On the other side Kishan Chand appeared as JDW 1 deposed that earlier in the suit Baldev Parshad had claimed mesne profits at the rate of Rs. 100/- per mensem but that relief was declined. However, he further stated that the premises could fetch only Rs. 40/- or Rs 50/- per mensem. The suit was filed in the year 1981 and Baldev Parshad claimed mesne profits at the rate of Rs. 100/- per mensem. In 1983 the amount could not be more than what he claimed in 1981. Thus keeping in view the evidence produced in this case, the mesne profits are allowed to the petitioner under issue No. 2 at the rate of Rs. 100/-per mensem. The period for which, mense profits are now to be allowed is upto April 1985 i.e. about 18 months and he would, therefore, be entitled to a sum of Rs. 1800/- on account of mesne profits for the said period.
9. For the reasons recorded above this revision petition is allowed with no order as to costs. The impugned order is set aside and the petitioner is held entitled to a sum of Rs. 1800/- (rounded) as mesne profits for the period from November 19, 1981 to April 12, 1985 at the rate of Rs. 100/- per month. This amount will be recovered from the security bond furnished in execution.