First Appeal No. 242 of 1955

22nd September, 1958.

Petitioner Counsel: T.N. Walawalkar,
Respondent Counsel: B.V. Chavan, for M.V. Paranjpe, No. 4.

Cases Cited:
Girish Chunder Lahiri v. Shoshi Shikhareswar Roy, (1900) 27 Ind App 110,ILR 27 Cal 951 (PC) [Para 1]
Gurudas Kundu Choudhary v. Hemendra Kumar Roy, AIR 1929 PC 300 (V 16),56 Ind App 290 [Para 2]
Narayan Govind Manik v. Sono Sadashiv, (1900) ILR 24 Bom 345,1 Bom LR 846 [Para 1]

JUDGMENT

JUDGMENT :-This appeal raises a short question relating to the interpretation of a preliminary decree which was passed in Suit No. 36 of 1940. That suit was brought by some sons against their father and his alienee. The suit was for partition and separate possession of the shares of the sons in the joint family properties. A preliminary decree was passed on 22-12-1941 inter alia, that decree directed that the sons shall obtain future mesne profits from the date of the suit till delivery of possession. The direction was given against the alienees of the father. The alienees were defendants Nos. 1 and 2. They are now represented by a Receiver appointed in another litigation. The decree was assigned by the sons to one Radhakisan

who is respondent No. 4. He filed a darkhast No. 1135 of 1943 for partition of the properties in accordance with the directions given in the preliminary decree. It is not disputed that he got on 10-9-1951 actual possession of the properties allotted to the shares of the sons. Thereafter, respondent No. 4 filed an application on 4-12-1953 for ascertainment of the mesne profits in respect of the properties allotted to the shares of the sons from the date of the suit till the date of delivery of possession. Thus the period for which respondent No. 4 claimed mesne profits was from 8-1-1940, the date of the suit, to 10-9-1951, the date on which he obtained possession of the properties allotted to the shares of the sons. The period is 11 years and 8 months and 2 days. Mesne profits have been calculated at the rate of Rs. 75/- per annum. The share of the sons has been ascertained to be 3/4th. Accordingly, mesne profits have been awarded to respondent No. 4 at the rate of Rs. 56/4 per year. The contention of the Receiver, who represents the interest of the alienees of the father, is that, though the decree states that the mesne profits shall be awarded until delivery of possession without specifying that the period shall be restricted to a period of three years from the date of the decree, in law, the decree should be construed as awarding mesne profits to the sons only up to three years from the date of the decree and not until 10-9-1951. At first, I was not inclined to agree with the contention of Mr. Walawalkar. This disinclination was due to the provision contained in Section 97 of the Civil Procedure Code, which states that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. A plain reading of the decree itself would show that mesne profits were awarded to the sons up to the date of delivery, and it did not in specific terms lay down that the mesne profits were to be restricted up to a period of three years from the date of the decree. Hence if the defendants Nos. 1 and 2 were aggrieved by the decree they should have preferred an apneal and got the direction for payment of mesne profits restricted to 3 years. However, Mr. Walawalkar, relied upon two authorities in support of his proposition. In view of those authorities, I cannot but come to the conclusion that the point raised by Mr. Walawalkar is right and must be held. The first ruling on which he relies is reported in Narayan Govind Manik v. Sono Sadashiv, ILR 24 Bom 345. In that case, their Lordships had to deal with a decree which was passed in terms which were similar to the terms of the decree in the present appeal. That decree was passed under Section 211 of the Civil Procedure Code. The decree stated that mesne profits were to be awarded till delivery of possession. But, their Lordships came to the conclusion, that the decree must be construed subject to Sub-Section (2) of Section 211 and, therefore, the plaintiff in that case was held not entitled to recover mesne profits for more than three years from the date of the decree. Mr. Chavan, who appears on behalf of respondent No. 4, wanted to draw a distinctly between that case and the present case. The distinction was based upon the ground that, under the old Code of 1882, a preliminary decree was not passed but a final decree was passed straight off, whereas under the present Code, a preliminary decree has to be passed under O. 20, R. 12, and I have to deal with a preliminary decree. I do not think how this distinction can avail respondent No. 4. If, at all, the position is worse so far as respondent No. 4 is concerned. Under the old Code, a decree giving mesne profits was a final decree, and, for executing that decree, the parties were required to go to the executing Court. It is well-known that an executing Court cannot go behind a decree and must execute the decree as it stands. In spite of this, the Division Bench came to the conclusion that the plaintiff was not entitled to mesne profits for more than three years from the dale of decree, and this conclusion was arrived at by interpreting the decree in such a manner as to bring it in accordance with the provisions of Sub-Section (2) of Section 211 of the Civil Procedure Code, 1882. Therefore, the ratio of this case viz., ILR 24 Bom 345 is that, when a decree is passed for payment of mesne profits until delivery of possession, there is always an implied term in the decree that mesne profits are not to be awarded for a period of more than three years in any case. The language of Section 211 of the Civil Procedure Code of 1882 is the same as the language which is used in Order 20, rule 12, and I do not see any distinction between the two provisions. The same view appears to have been taken by the Privy Council also in the case reported in Girish Grander Lahiri v. Shoshi Shikhareswar Roy, 27 Ind App 110 (PC). In that case also, the decree was for mesne profits for the period of dispossession, and the decree for mesne profits was not restricted to a period of three years from the date of the decree. However, their Lordships, at page 126, observed as follows :

"The Subordinate Judge gives the plaintiff mesne profits up to the date of possession. But that is more than three years from the date of the decree, and to the extent of the excess it is unauthorised by S. 211 of the Code."

On this view, their Lordships gave a declaration as follows :

"Declare that mesne profits for Nyadiar should not be allowed for any later time than three years from the date of the decree;"

2. Mr. Chavan, however, referred me to the ruling reported in Gurudas Kundu Chowdhary v. Hemendra Kumar Roy, 56 Ind App 290 : (AIR 1929 PC 300). He contended that, in that case, a different view was taken. I do not think I can agree. In that case, there was no question of the construction of a decree passed for mesne profits until the date of delivery of possession. There, the decree was passed in the following terms : "That the claim of this suit be decreed with costs and mesne profits" and the contention was that the mesne profits which were awarded were mesne profits up to the date of the suit and not up to the date of delivery of possession. There was no question of mesne profits having been granted in that case for a period of three years from the date of the decree. The matter was finally decided by the Privy Council in 1917, and the mesne profits were being claimed until 1919 i.e. within two years from the date on which the Privy Council had passed the decree. Therefore, in my opinion, it is not correct to say that in Gurudas case 56 Ind App 290 : (AIR 1929 PC 300), the Privy Council had taken a different view.

3. In view of the aforesaid legal position, respondent No. 4 shall be entitled to mesne profits only for a period of three years from 22-12-1941 to 22-12-1944 and he will not be entitled to receive mesne profits for the subsequent period. Calculating the mesne profits at the rate of Rs. 56/4 per year the amount would be Rs. 168/12/-. This figure

will be substituted in the final decree of the trial Court for the figure of Rs. 618/12/-.

4. Therefore, the appeal is allowed. I order that the figure "Rs. 168/12/-" shall be substituted for the figure "Rs. 618/12/-" wherever' it occurs in the decree of the trial Court. Respondent No. 4 shall receive proportionate costs from the appellant in the trial Court. Each party shall bear its own costs of this appeal.

Appeal Allowed