JUDGMENT
B.N. Chaturvedi, J.
1. By a judgment and decree dated 5th January, 1996, the suit of the applicant-respondent, for ejectment and mesne profits, was decreed by the Court of an Additional District Judge, Delhi. Aggrieved by the judgment and decree, non applicants/defendants filed an appeal being RFA No.181/96 before this Court on 6th April, 1996. On an application for stay of execution of the decree, by an order dated 3rd October, 1996, partial relief was granted and the execution of the decree, in so far as it related to recovery of possession, was stayed. The prayer for stay of execution of decree for mesne profits was, however, declined. The appeal was finally dismissed on 10th August, 2001.
2. Now, review of the judgment in appeal is being sought by the applicant-respondent on the ground that the arguments advanced in relation to the rate of mesne profits for the period there was a stay of recovery of possession, which constituted part of written submissions, have gone unnoticed and as a result the same were not dealt with and there was no adjudication on that aspect of the matter. This, according to applicant/respondent, constitutes an error apparent on the face of the record making out a ground for review of the judgment dated 10th August, 2001.
3. The non applicants/defendants contest the application on the plea that there being no error apparent on the face of record, there is no ground for review of the judgment and the same is liable to be dismissed. It is added that having accepted the decretal amount of Rs.46,34,417/- with costs of Rs.20,000/- on 24th October, 2001 in full and final satisfaction of the decree, in addition to delivery of peaceful and vacant possession of the suit premises, the applicant/respondent is estopped from challenging the judgment.
4. While deciding the suit of the applicant/respondent, a decree for pendente lite and future mesne profits was passed in his favor at the rate sought by him in the plaint. However, in the course of hearing on the appeal, learned counsel for applicant/respondent pressed for an inquiry under Order XX Rule 12 CPC for determination of prevalent market rent to award pendente lite and mesne profits and to pass a decree at a rate higher than the one claimed in the plaint. This argument was, however, not accepted for the reasons stated in the judgment. Additionally, provisions of Order XLI Rule 33 CPC were also sought to be invoked in support of his claim for pendente lite and future mesne profits at a rate higher than the one sought in the plaint but with no success as the rate of pendente lite and future mesne profits as awarded by the learned Trial Court was maintained in appeal.
5. The plea to compensate the applicant/respondent for the period during which execution of decree in relation to possession remained stayed, is another facet of the argument seeking payment of future mesne profits in respect of the suit premises at an enhanced rate than the one granted by the learned trial court in its decree.
6. To reinforce his argument that in a case where a particular party is put to a disadvantageous position on account of interim orders passed by the Court, the parties are required to be put in the same position they would have been but for the interim orders of the Court, the learned counsel for the applicant/respondent referred to Supreme Court decisions in State of M.P. & Ors. . Kanoria Chemicles and Industries Vs. U.P. State Electricity Board and Style (Dress Land) Vs. Union Territory, Chandigarh. All these were matters where some interim orders came to be passed in the course of hearing on writ petitions. In the case of State of M.P. & Ors. it was laid down that the interim orders are always subject to final orders and the High Court can at the final stage correct or repair the damage caused by its interim order. M/s. Style (Dress Land) was a case where writ petitions had been filed challenging rental enhancement of shops leased out by Chandigarh Administration and there was stay against recovery of rent at enhanced rate during the pendency of the writ petition and on dismissal of the writ petition interest at the rate of 18% was awarded by the High Court on the arrears of rent for the period when stay order was in force, the Supreme Court held that the order awarding interest on the arrears of rent was not illegal though the rate of interest was reduced from 18% to 15%. In Kanoria Chemicals there was stay of operation of order or notification and consequently the petitioners did not have to pay electricity charges in terms of such order or notification during the period of stay but on dismissal of the writ petitions they were held to be liable to pay on delayed payment surcharge/interest on the amount withheld by them during the pendency of the petitions. The Supreme Court observed that the grant of stay of the notification had not the effect of relieving consumers/petitioners of their obligation of late payment of surcharge/interest on the amount withheld by them when their writ petitions were dismissed ultimately and on that dismissal of the petition/appeal, a status quo ante was to be restored. The situation in the present context is quite different.
7. An appeal is in continuation of the suit and the judgment and decree passed by the trial court merges with the order of the appellate court. In the present case the judgment and decree, passed by the learned trial court in applicant’s/respondent’s suit for ejectment and mesne profits, merged with the judgment dated 10th August, 2001 of this Court whereby the appeal filed by non-applicants/defendants was dismissed. The pendente lite and future mesne profits had been granted by the learned trial court at the rate of Rs.15000/- per month as sought by the applicant/respondent in his plaint. The non-applicants/respondents continued under liability to pay mesne profits at the aforesaid rate even during the period the interim order staying execution of the decree in relation to possession remained in force and the applicant/respondent accepted the amount of mesne profits at that rate before the possession of the suit premises was eventually handed over to him. Thus it is not a case where the applicant/respondent went uncompensated for the period of stay though not to his expected extent. Status quo ante in regard to payment on account of use and occupation charges continued even during the period of stay of execution of the decree relating to possession and in the circumstances, a further order for payment of mesne profits at an enchanced rate than the one granted under the decree was not required to be passed. The Supreme Court decisions referred to on behalf of the applicant/respondent thus, appear to render no assistance in promoting his cause in seeking payment of mesne profits for the period of stay at an enhanced rate. The argument advanced by the learned senior counsel for the applicant/respondent, is therefore unacceptable. No doubt, the contention raised in the written submissions, as aforesaid, were not specifically dealt with in the judgment dated 10th August, 2001, omission in this respect turns out to be inconsequential inasmuch as the same is not good enough warranting any alteration or modification in the judgment dated 10th August, 2001 in regard to the rate at which the mesne profits for the period of stay was liable to be paid to the applicant/respondent.
8. We, thus, find no merit in the application and dismiss the same.
