ORDER 1. IA No. 2865/2018, an application for directing the appellant to pay the due water bills is not pressed; therefore, it is dismissed as not pressed. 2. IA No.958/2018 and IA No.1602/2018 are taken up for consideration. Both these applications are by respondent/plaintiff. 3. Vide IA1602/2018, the respondent/plaintiff seeks vacating of stay order dated 25.4.2005 and for closing right of defence of the appellant for not depositing the rent. That IA No. 958/2018 though titled as for mesne profit at market rate; however, in substance it is an application for rent at current market rate during pendency of the appeal. 4. Appeal as evident is against the judgment and decree dated 23.8.2004 whereby on the grounds under section 12(1)(a), (c), (e) and (o) of the Madhya Pradesh Accommodation Control Act, 1961, the appellant is evicted from the suit premises. That by order dated 25.4.2005 the operation of impugned judgment and decree is stayed subject to depositing the entire arrears of rent and interest within one month and that the appellant shall continue to deposit the monthly on 15th day of each succeeding month with a further direction that noone will be entitled to withdraw the amount which shall be kept deposited after every six months in a nationalized bank. But the order shall not effect right of respondent No.1, if any amount is withdrawn by her till 25.4.2005. 5. The order passed on 25.4.2005 was modified by order dated 30.1.2006 on IA No. 12574/2005; whereby, respondent No.1 was held entitled to withdraw the current rent deposited by the appellant and shall also be entitled to get interest on the amount kept in FDR and to withdraw 50% of the amount kept in FDR. 6. As to the application IA No. 1602/2018 for vacating stay and for closing the defence, it is borne out from the reply filed by the appellant that the order passed on 25.4.2005 has been adhered. And respondent No.1 in furtherance to permission granted by order passed on 30.1.2006 has withdrawn the amount of rent as permitted and is also withdrawing the current rent deposited. There is no denial of these facts adverted at by the appellant. 7. And respondent No.1 in furtherance to permission granted by order passed on 30.1.2006 has withdrawn the amount of rent as permitted and is also withdrawing the current rent deposited. There is no denial of these facts adverted at by the appellant. 7. As regard to enhancement and payment of rent at current market rate, it is urged on behalf of the respondent that the suit property is situated in the heart of the city of Shivpuri and the commercial value of the same has enhanced manifold. It is urged that the suit was instituted on 1.8.1996. It is urged that decree for eviction was passed on 23.8.2004. And had the same been not stayed, the respondent/plaintiff would have reaped the benefit therefrom. It is urged that area of suit premises is 3280 sq.ft (85x38ft), and the appellant/defendant is running a school in the premises wherefor meagre amount of Rs. 2,300/- per month is being paid for last over 24 years. It is contended that the petitioner an octogenarian has been deprived of the best of the return from her property for 24 years. In this fact situation, the respondent/plaintiff seeks enhancement in rent to Rs.15,000/- per month. 8. The appellant has countered the claim. It is urged that once a discretion having been exercised under Order 41 rule 5 Code of Civil Procedure, 1908 with a direction to deposit the rent and cost as fixed by the lower Appellate Court, no modification is warranted. It is further contended that though the rent of the premises as agreed has been Rs. 2300/- per month, yet as per determination by the lower appellate Court the defendant is abiding by the interim direction. It is urged that plaintiff being not the owner of the suit property cannot be allowed to have unlawful gain under the garb of enhanced rent. 9. After hearing the learned counsel for the parties and taking note of principles of law laid down in Marshall Sons and Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and another [ (1999) 2 SCC 325 ] and Atma Ram Properties (P) Ltd. v. Dederal Motors (P) Ltd. [ (2005) 1 SCC 705 ], the IA No. 14804/2011 deserves to be allowed. 10. In Marshall Sons and Company (supra), it has been observed by their Lordships : "4. (I) Ltd. v. Sahi Oretrans (P) Ltd. and another [ (1999) 2 SCC 325 ] and Atma Ram Properties (P) Ltd. v. Dederal Motors (P) Ltd. [ (2005) 1 SCC 705 ], the IA No. 14804/2011 deserves to be allowed. 10. In Marshall Sons and Company (supra), it has been observed by their Lordships : "4. From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation." 11. In Atma Ram Properties (P) Ltd. (supra), in the context of subrule (1) and (3) of rule 5 of Order 41 of the Code of Civil Procedure, 1908, it has been held : "8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted. 9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be 'substantial loss' to the party applying for stay of execution within the meaning of clause (a) of sub-rule (3) of rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. However, this is not the only condition which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. 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. ............" 12. In the case at hand the suit property is situated in a prime location having the potency to fetch reasonably higher rent. Though the respondent/plaintiff has filed document to justify the rent Rs. 15,000/- per month; however, taking into consideration the relevant facts on record Rs. 10000/- (Rupees Ten thousand) per month would be the reasonable rent to be deposited by the appellant/defendant in the same manner as directed by the trial Court; the respondent/plaintiff would be entitled to withdraw the same subject to furnishing solvent security in equal sum and an undertaking that in case the appellant/defendant succeeds in the second appeal, shall refund it with interest @ 6% per annum. 13. The order dated 25.4.2005 and order dated 30.1.2006 are modified to the extent above. 14. I.A. No. 958/2018 is disposed of finally in above terms. D.K. Agarwal for appellant; R.K. Soni for respondent No. 1.