IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE HIRDESH

ON THE 5^th OF JANUARY, 2026

MISC. PETITION No. 6328 of 2025

KAMLESH JAIN AND OTHERS

Versus

BHURELAL JAIN AND OTHERS

Appearance:

Shri Nirmal Sharma - learned Counsel for petitioners.

ORDER construction was raised by their predecessor and that they were in actual possession for several decades.

Present miscellaneous petition under Article 227 of Constitution of India has

been filed by petitioners being dissatisfied with order dated 05.08.2025 passed by District Judge, Mehgaon, District Bhind in Regular Civil Appeal No.42 of 2023, whereby application filed by petitioners under Order 41 Rule 5 of Code of Civil Procedure was partly allowed. By said order, execution of decree relating to possession was stayed, whereas execution of decree relating to mesne profits was not stayed, arising out of judgment and decree passed in RCS No. 58-A of 2014 by Second Civil Judge, Senior Division, Mehgaon, District Bhind in favour of plaintiff–respondent

No.1.

2. Brief facts of case are that respondent No.1 filed a civil suit for declaration,

possession and mesne profits in respect of shops situated on land bearing survey Nos. 1035 and 1036 at Village Soni, Tehsil Mehgaon, District Bhind. It was pleaded that said land was purchased through registered sale deeds and after renumbering of khasra numbers, plaintiff’s name was duly recorded in revenue records. It was further pleaded

that constructions were raised on land and plaintiff was lawful owner.

3. Defendants contested suit by filing written statements alleging that land was

purchased benami in name of plaintiff’s predecessor. It was further alleged that

4. After completion of pleadings and evidence, trial court decreed suit in favour of plaintiff by judgment and decree dated 31.07.2023, directing restoration of possession and payment of mesne profits at rate of Rs.1,000/- per month.

5. Being aggrieved by judgment and decree, petitioners preferred Regular Civil Appeal No.42 of 2023 along with application under Order 41 Rule 5 of CPC seeking stay of execution. Appellate Court, by impugned order dated 05.08.2025, stayed execution of decree relating to possession subject to furnishing of surety and undertaking, but declined to stay execution of decree relating to mesne profits.

6. Assailing impugned order, learned counsel for petitioners contended that once appellate court found a prima facie case in favour of appellants and granted stay of dispossession, decree ought to have been stayed in its entirety. It was further contended that question of entitlement to mesne profits is intrinsically connected with question of ownership and possession, which is pending adjudication in appeal. Non-stay of mesne profit portion of decree would render appeal illusory and cause irreparable prejudice to petitioners. Petitioners have expressed willingness to comply with all conditions imposed by Court and are ready to secure mesne profit amount; therefore, impugned order deserves modification.

7. Looking to nature of case, this Court does not deem it necessary to issue notice to respondents.

8. Heard learned counsel for petitioners and perused impugned order as well as material available on record.

9. It is evident that appellate court has already found sufficient grounds to protect petitioners from dispossession during pendency of appeal. Question of mesne profits is directly dependent upon final determination of rights of parties regarding ownership and possession of disputed property. Permitting execution of mesne profit decree during pendency of appeal may result in serious prejudice to petitioners and may frustrate very purpose of appeal. At same time, interest of respondent–plaintiff also requires protection. In facts and circumstances of case, ends of justice would be met by staying entire operation of judgment and decree, subject to safeguarding mesne profit amount.

10. Accordingly, impugned order dated 05.08.2025 passed by District Judge, Mehgaon,