The main legal point established in the judgment is the appellate court's jurisdiction to put the appellant on reasonable terms for loss occasioned by delay in execution of the decree by the grant of a stay order, and the determination of compensation for use and occupation of the premises.

Manmohan, J.

1. The Respondent/Plaintiffs have filed the present application being CM No. 4710/2008 under Section 151 of Code of Civil Procedure praying for a direction to the Appellant/Defendants to deposit a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) per month as compensation for use and occupation of the suit premises from December 1994 till final decision in the present appeal.

2. Briefly sated the material facts for this application are that the Appellant/Defendants in the year 1995 had filed a suit for recovery of possession and damages in respect of first floor of the premises bearing No. B-32, Connaught Place, New Delhi - 110 001, hereinafter referred to as the suit premises. The said suit premises admittedly comprises of three bed rooms, kitchen, bathroom, verandah facing the Central Park, Connaught Place.

.3. On the basis of the pleadings of the parties, the trial court framed the following issues:

.(i) Whether the plaintiff are owners and landlords? OPP

.(ii) Whether the suit is barred by Section 50 of the DRC Act? OPD.

.(iii) Whether the plaintiff is estopped from bringing the present suit in view of the averments in para No. 3 of the Written Statement of defendant No. 1 to 4? OPD.

.(iv) Whether the tenancy of the defendant is terminated by a valid and legal notice? If not, its effect. OPP.

.(v) Whether the defendants are still continuing as tenants? OPD.

.(vi) Whether the premises were taken for residential-cum-commercial purpose? OPD.

.(vii) Whether the plaintiff is entitled for the possession of the premises as claimed? OPP.

.(viii) Whether suit is barred by res judicata? OPD.

.(ix) Whether the plaintiff is entitled for the damages as claimed? If so, as what rate? OPP.

.(x) Relief.

.4. On 11th January, 2005 the trial court passed a preliminary decree of possession of the suit premises in favour of the Respondent/Plaintiffs, but directed a further enquiry to be held under Order 20 Rule 12 of Code of Civil Procedure in respect of mesne profits/damages to be paid by the Appellant/Defendants herein for unauthorized occupation of the suit premises.

5. However, on the present appeal being filed, this Court on 7th February, 2005 admitted the matter and in the interregnum the learned Counsel for the Respondent/Plaintiffs undertook not to obtain warrants of possession of the suit premises. While the present appeal was pending final disposal, the Respondent/Plaintiffs have filed the present application seeking payment of the interim compensation as detailed hereinabove.

6. In the present application, the Respondent/Plaintiffs have stated that the owners are all senior citizens who, after several years of court battle, have obtained a decree for possession. But, they have not received any rent/occupation charges for the suit premises since 1989. The Respondent/Plaintiffs have further alleged that the Appellant/Defendants are two of the five children of the original tenant who had died about 30 years ago and further the tenants wife who was a statutory tenant had also died about 15 years ago. In this application it has further been stated that the present appeal has been pending adjudication in this Court for last about three years and the market rent of the suit premises is approximately Rs. 2,00,000/- per month.

7. Though the Appellant/Defendants admit that they are in occupation of the suit premises, they claim that rents of first floor properties in Connaught Place are abysmally low as said properties can be used only for residential purposes. The Appellant/Defendants further allege that during the last 5 to 7 years there has been no letting out of first floor properties in Connaught Place as no person is willing to take premises in that area for residential purpose and further letting out of such premises for commercial use is legally not permissible. The Appellant/Defendants further claim that the finding of the trial court with regard to issue No. 4 is untenable in law since it has been passed without eve