Code of Civil Procedure, 1908–Order 41, Rule 5–During the pendency of first appeal, plaintiff-respondent filed the application for enhancement in mesne profit–Division Bench of this Court passed the order for enhancement and further issued the direction that if the appellant fails to deposit the arrears and mense profit, the respondent shall be liberty to get the decree executed immediately–Appellant vacated the shop in question and filed the application for withdrawal of appeal without paying the arrears and mesne profit–Whether the permission for withdrawal can be granted?–Held, yes, as the order was conditional–Further, the respondent did not raise objection that he will take passession only if the mense profit are simultaneously paid to him–Appellant is permitted to withdraw the appeal.
