The main legal point established in the judgment is that the matters in issue in a subsequent suit for mesne profits were neither directly nor substantially in issue in the previous suit for eviction, and the order of stay of the execution proceedings of the previous suit did not warrant a stay of all further proceedings in the present suit.

Moushumi Bhattacharya, J.

This is an application filed by the defendant for stay of the suit till the disposal of the appeal filed by the defendant before the Division Bench of this Court by which the execution proceedings was directed to be stayed unconditionally for a period of two weeks and the defendant was directed to deposit the occupational charges of the suit premises in a certain manner directed by the Appeal Court.

2. The background of the present suit is this. The plaintiff filed an Ejectment suit in 2010 before the learned City Civil Court for a decree of recovery of possession against the defendants (Shyam Engineering Company Pvt. Ltd., defendant no.1 and Shyam Sel Limited defendant no. 2) in connection with an office space on the first floor of premises situated at Ganesh Chandra Avenue, Kolkata. The plaintiff's case was that the defendant no.1 tenant had sub-let the suit premises to the defendant no.2. The defendants contested the suit taking the defence that the defendant no.1 was a lawful tenant. By a final judgment and decree dated 22nd September 2015, the learned City Civil Court held that the defendant no.1 cannot be accepted as a tenant and is a sub-lessee without the consent of the plaintiff landlord. The defendant no.2 (before the City Civil Court) preferred an appeal from such decree before this court together with a stay of population of the judgment. By an order dated 13th July 2016, the Division Bench of this court was pleased to direct that all further proceedings in the execution case would remain stayed unconditionally for a period of two weeks subject to the defendant depositing arrear rent up to June 2016, at the rate of last paid rent together with decretal costs in the executing court.

3. In July 2017, the plaintiff filed the instant suit for recovery of money on account of mesne profit along with interest from 8th July 2014 till 7th July 2017. As part of the cause of action pleaded, the plaintiff stated that the defendant is continuing in possession of the suit premises as a trespasser and the defendant has no right to remain in occupation of the suit premises. The plaintiff filed an application for appointment of a Commissioner to determine the mesne profit which was dismissed by an order dated 17th July 2017 wherein it was observed that the decree passed by the learned City Civil Court had been stayed in the appeal and the outcome of the suit would depend upon the findings of the Appellate Court.

4. The instant application was filed by the defendant immediately thereafter for stay of the suit. It should be stated that the defendant before this court was earlier known as Shyam Sel Ltd., the defendant no.2 before the Ld. City Civil Court.

5. Mr. Jishnu Chowdhury and Mr. Subhashish Sengupta learned counsel for the defendant/applicant submits that the instant suit is liable to be stayed under Section 10 of the Code of Civil Procedure, 1908 as the suit is hit by the principles of Res-Subjudice. According to him, the issue before this court in the instant suit is directly and substantially in issue in a previously instituted suit between the same parties under the same title where such suit is pending in the same and/or any other court having jurisdiction. Counsel submits that the status of the defendant as a tenant/sub-tenant without the consent of the landlord which was decided by the learned City Civil Court was under consideration before the Division Bench of this court in appeal. Counsel emphasises that an appeal is a continuation of the suit and relies on the definition of mesne profits under the CPC and contends that mesne profit applies to a person who is in wrongful possession of the property. Therefore, to determine the mesne profit (as claimed by the plaintiff in the instant suit), the first and foremost question which would have to be decided is whether the defendant is in wrongful possession of the suit premises. In the instant case, the learned City Civil Court has come to a co