HAMEED KUNJU Vs. MOHAMED KUNJU

JUDGEMENT

(1.) This second appeal arises out of proceedings in execution of two cross decrees. The decree holder in O.S. No. 992 of 1083 on the file of the Krishnapuram Munsiffs Court is the judgment debtor in O.S. No. 297 of 1103. The two lower Courts have concurrently found that the decree holder in the former case is entitled to further amounts after setting off the entire decree-debt in the latter case. The lower appellate court confirmed the execution courts order to the effect, on the ground that a prior interlocutory order the execution court passed had become final between the parties and that it was therefore incompetent on the part of the decree holder in O.S. 297 to seek to reagitate in the appeal the question dealt with by that order. We are afraid the lower appellate courts decision cannot be confirmed on the ground mentioned by the learned Judge.

(2.) The execution court passed the order which was the subject of the appeal before the lower appellate court on 13.11.1123. Prior to that on 21.11.1122 the Court directed the parties to file statements setting out the amounts due as per the two decrees and in giving that direction held that the decree holder in O.S. 992 was entitled to get interest on the mesne profits awarded to him by the decree. It is now agreed on both sides that under the provisions of the Code of Civil Procedure in force at the time when that decree was passed no interest on mesne profits could be allowed unless the decree expressly provided for it. The decree makes no such provision and the execution Courts direction embodied in its order dated 21.11.1122 is therefore clearly wrong. The final order the execution Court passed was on the basis of that order and the view the lower appellate court has taken is that in so far as the order dated 21.11.1122 was not appealed against it had become final and that precluded the appellant (who is also the appellant here) from raising the correctness of the order as to interest on mesne profits. Reliance was placed for this view on the decision reported in Jathavethan Nambooripad v. Revi Namboori, 33 TLJ 340. That case however is only authority for the view that it was not open to the execution Court to review or reconsider its previous order. The order did not preclude the appellate Court from examining the correctness of the position provided the condition laid down in that behalf by the Code of Civil Procedure has been duly complied with.

(3.) S.105 (S. 83 Travancore Code) of the Code of Civil Procedure provides inter alia that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Though the section says: where a decree is appealed from it is well settled on authorities that the principle can be extended to interlocutory orders passed in execution proceedings. See Chandrabala Debi v. Prabodh Chandra Roy - 36 Cal. 422; Alagappa Chetty v. Annamalai Chetty and others - 4 Law Weekly 411 Madras 1916; Chitar Singh v. Lachmi Narain, AIR 1932 All. 392 and Muthayyan Swaminathan Sastrigal and others v. S. Narayanaswami Sastrigal and others, AIR 1936 Mad. 936 . A passage from the decision of Mookerjee, J. and Carnduff, J. in the first named case may usefully be quoted here.