V. MOHTA ANOOP, J.

( 1 ) THE petitioner-landlord, being a decree holder, moved an application under Order XX, Rule 10 (l) (a) and (c) of the Code of Civil procedure (for short "cpc") for mesne profits against the respondent-tenant/ judgment debtor The suit for recovery of the possession of the premises, let out to the tenant, was decreed on 25th June, 1982 The Appeal No 522 of 1982, preferred by the tenant was also dismissed Writ Petition No 946 of 1983 filed by the tenant was disposed of by order dated 18th January, 1985 The operative part of the order in Writ Petition No 3029 of 1983 is reproduced as under

"the Court records the statements that it is agreed between the parties that the decree passed by the Small Cause Court at Pune in Regular Civil Suit No 314 of 1980 and confirmed by the District Court of Pune in Appeal No 522 of 1982 shall not be executed before 31st October 1985 if the defendant files in this Court on or before 25th January, 1985 on affidavit 1 affirming that he is in occupation of the suit premises and no other person is in possession thereof as a licencee or a sub-tenant or in any other capacity whatsoever, 2 giving an undertaking to this Court, which undertaking shall be deemed to have been accepted after the affidavit is filed, that he will give vacant and peac eful possession of the suit premises to the plaintiff on or before 1st November 1985, 3 giving a further undertaking that he will not induct any other person in the suit premises in any capacity whatsoever The Court directs that in case the affidavit as aforesaid is not filed on or before 25th January 1985 or in case there is a breach of the undertaking given in clause (3) above, the decree shall become executable immediately the defendant will also be liable for contempt of Court or for perjury, as the case may be "this undisputed position, as reflected above, goes to the root of the matter

( 2 ) BY order dated 31st March, 1989, the learned Small Causes Court, pune, ordered thus

"it is hereby declared that the mesne profits for the period 25-6-82 to 31-10- 85 will be at the rate of Rs 640/- pm After deducting the amount of rs 80/- pm deposited by the defendant the applicant-plaintiff will be entitled to claim the remaining amount for the said period at the rate of rs 560/- p. m. "

( 3 ) AFTER considering the rival contentions between the parties, the Appellate court, however, reversed the findings by its order dated 21st April, 1990 and, thereby, quashed and set aside the order passed by the Small Causes Court

( 4 ) THE landlord, therefore, preferred the present writ petition, which was admitted on 18th April, 1991, in view of 1985 (1) Bomcr 406 1985 Mh L J 80 (Ratilal Thakordas Tamakhuwala Gujarathi andanr v Vithaldas Magandas Gujarathi)'

( 5 ) HEARD the learned Counsel Mr V. S. Gokhale appearing for the petitioner and Mr S. J. Rairkar appearing for the respondent The foundation of Ratilal (supra) and the principle which emerges from the same has to be taken note of on the basis of facts and circumstances of the case In the present case, the question is whether the tenant was in wrongful possession from the date of the decree till the date of eviction in question for deciding mesne profits

( 6 ) THE order passed in the Writ Petition No 3029 of 1983 clearly reflects that the parties agreed that the decree passed by the Small Causes Court, pune, shall not be executed before 31st October, 1985, if the defendant files in the Court, an Affidavit with various conditions as referred above Having once accepted those terms and conditions and when the same was endorsed by the court and parties agreed and acted upon the same, it is difficult for the landlord now to again insist that the possession of the tenant at the relevant time basically from the date of the decree was unauthorised Even though it is contended by the learned Counsel appearing on behalf of the tenant that the same was a concession given by the landlord to the tenant to enjoy the pre