ORDER 1. On 12.9.2016 while adjourning the matter it was made clear that since the writ petition is under Article 227 of the Constitution of India, it shall be heard finally if time permits. Therefore, with consent of learned counsel for the parties, matter is finally heard. 2. Order dated 4.3.2016 passed in an appeal under section 96 of the Code of Civil Procedure, 1908 : Civil Appeal No.3-A/2016, on an application under Order 41 rule 5 CPC is being assailed by the petitioner/appellant/defendant. The challenge is confined to the conditions imposed by the appellate Court while staying the operation of judgment and decree. 3. The suit at the instance of respondent plaintiff was for eviction of petitioner herein under Madhya Pradesh Accommodation Control Act, 1961 on the grounds under section 12. 4. The suit is decreed on 3.11.2015 in the following terms: ^^,&izfroknh oknxzLr laifÙk dk dCtk oknh dks vkxkeh 2¼nks½ ekg dh le;kofèk esa iznku djsaA ch& izfroknh okn izLrqfr fnukd 22-7-2005 ls fnukad 22-10-2015 rd 123 ¼,d lkS rsbZl½ ekg dk var% dkyhu ykHk 24]60]000@&¼pkSchl yk[k lkB gtkj½ #i;s Hkh oknh dks vnk djsaA lh& 2¼nks½ ekg dh le;kof/k i'pkr~ oknxzLr laifÙk dk dCtk izfroknh }kjk oknh dks iznku ugha djus dh fLFkfr esa izfroknh] oknh dks 40]000@& ¼pkyhl gtkj½ #i;s izfrekg dh nj ls dCtk izkfIr fnukad rd fdjk;k vnk djsaA Mh&izdj.k dh ifjfLFkfr;ksa dks ns[krs gq;s mHk;i{k viuk&viuk okn&O; Lo;a ogu djsaA bZ& vfHkHkk'kd 'kqYd izekf.kr gksus ij rkfydk vuqlkj] tks Hkh de gks] ns; gksA^^ 5. That subject appeal under section 96 CPC has been preferred along where with the petitioner has filed an application under Order 41 rule 5 CPC wherein the impugned order came to be passed. 6. The appellate Court taking into consideration the principle of law laid down in Marshall Sons and Co.(I) Ltd. v. Sahi Oretans (P) Ltd. and another [ (1999)2 SCC 325 ] and Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [ (2005)1 SCC 705 ] and State of Maharashtra and another v. Super Max International Private Limited and others [ (2009)9 SCC 772 ]; and other decisions on the scope of the appellate Court's discretion in setting out the condition precedent for staying the operation of the decree of eviction; stayed the eviction on fulfillment of following conditions, viz. that the Appellant shall deposit the entire mesne profit in the Court within three months; solvent surety of Rs.Five lacs with an undertaking that in case the appeal is dismissed he shall within the time fixed by the Court vacate the premises and hand over the vacant possession to the plaintiff; deposit every month Rs.2,000/- with the trial Court during pendency of appeal. 7. While not disputing the jurisdiction of the appellate Court to impose conditions if it stays the operation of the judgment and decree such power emanates from rule 5 of Order 41 CPC. And, while exercising such discretionary power the appellate Court as held by their lordships in Atmaran Properties (Pvt.) Ltd. (supra), “9 Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. …..” 8. It is however, contended that the conditions which are laid down by the appellate Court are onerous and burdensome. Reliance is placed on the observation by their lordships in Supermax International (supra)- “77- In light of the discussions made above we hold that in an appeal or revision preferred by a tenant against a order or decree of an eviction passed under the Rent Act it is open to the appellate or the revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/ decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.” However, it is discernible from paragraphs 73 to 76 that their lordships affirmed the view in Atma Ram Properties (supra) - “73. In an appeal or revision, stay of execution of the decree(s) passed by the Court(s) below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the Court, to decline to grant any stay or to grant stay subject to some reasonable condition. In an appeal or revision, stay of execution of the decree(s) passed by the Court(s) below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the Court, to decline to grant any stay or to grant stay subject to some reasonable condition. In case stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant-in-revision will not have the protection of any of the provisions under the Rent Act relied upon by Mr. Lalit and in all likelihood would be evicted before the revision is finally decided. In the event the revision is allowed later on, the tenant's remedy would be only by way of restitution. 74. In Atma Ram Properties the Court viewed the issue exactly in the same way (See paragraphs 6, 8 & 9 of the decision). Further, the decision also answers Mr. Lalit's submission that the tenancy did not come to end on the passing of the decree but would continue until the tenant was actually physically evicted from the premises in execution of the decree. 75. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [ (2005)1 SCC 705 ], the Court framed two issues arising for consideration as follows : “10-This submission raises the following two issues: (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) up to what point of time is the tenant liable to pay rent at the contractual rate and when does he become liable to pay compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent to the landlord ?" 76. The Court answered the first issue as follows : “16- We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy." The second issue was answered as follows: "(2)- With effect from that date (the passing of the decree of eviction), the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree." (words in parenthesis added) (emphasis supplied) 9. In the case at hand, the petitioner is in occupation of the premise being used as Nursing Home and the clinic. It is not that the petitioner tenant is in penuary. His possession over the suit property being protected, the respondent landlord cannot be denied the benefit of the decree. Thus though the petitioner is directed to deposit the entire amount towards mesne profit, but the same having been directed to be deposited with the Court rather to pay it to the respondent/plaintiff an equity has been balanced. As to other conditions, the same in the considered opinion of this Court cannot be termed as onerous because being permitted to be in occupation of the premises the petitioner is under an obligation to pay the rent and since there is decree of eviction, he is bound to indemnify that in case he looses he will leave the premises. The solvent surety is to ensure that the petitioner carry out the undertaking. 10. Having thus considered this Court does not perceive any illegality in the impugned order. 11. Consequently, petition fails and is dismissed. No costs. S.M. Guru for petitioner; Ashok Lalwani for respondent.