JUDGMENT :

Bibhas Ranjan De, J.

1. This revisional application has been filed challenging the order dated 31st January, 2022 passed in connection with Title Appeal No.219 of 2019 whereby the learned Additional District Judge, Fast Track Court-II, Howrah Sadar, passed an order staying operation of the judgment and decree passed by the learned Civil Judge (Junior Division), 7th Court at Howrah in connection with Title Suit No.246 of 2012 while disposing of an application for stay of execution as well as one application under Order XLI Rule 5 of the Code of Civil Procedure (in short, CPC).

2. Learned counsel appearing on behalf of the petitioner has submitted that the Learned Trial Judge stayed the operation of the judgment and decree on an application filed on behalf of the opposite party herein in respect of one application for stay of all further proceeding in connection with Title Execution Case No.108 of 2019, pending before the Learned Appellate Court, but the learned Trial Judge disposed of both the applications together and ultimately stayed the operation of the judgment and decree passed in Title Suit No.246 of 2012.

3. Learned counsel appearing on behalf of the petitioner has drawn my attention to the order passed by the Co-ordinate Bench of this Court in connection with CO 1310 of 2020 wherein the Co-ordinate Bench directed the Learned Appellate Court to hear out the application under Section 5 of the Limitation Act and if the application for condonation of delay is allowed, then the petitioner shall file objection to the stay application immediately and the application for stay shall be proceeded with by the learned Court by giving an opportunity of hearing to all.

4. In support of his contention, learned counsel appearing on behalf of the petitioner takes assistance of a case of M/s. Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd. reported in (2005) 1 SCC 705 particularly the observation made in paragraphs 18 and 19, which run as follows:-

“18. That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the tenant- appellant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd. & Anr., (1999) 2 SCC 325, this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment- creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.

19. To sum up, our conclusions are:-

(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;

(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated m