VARKEY Vs. ELY

JUDGEMENT

(1.) The first plaintiff sued for declaration of title to a certain property and for an order of injunction against trespass. A receiver appointed by court took possession of the property in the year 1117. The court of first instance decreed the suit in 1121. On appeal by some of the defendants, the District Court reversed the decree of the Trial Court and dismissed the suit on February 8, 1950. During the pendency of the appeal, the first plaintiff assigned his interest to the second plaintiff who was thereupon impleaded as the second respondent in the appeal. In pursuance of the decree of the first court, the first plaintiff had taken possession of the property from the Receiver on Dhanu 18, 1121. Against the dismissal of the suit, the second plaintiff preferred a second appeal to the High Court which confirmed the decree of the District Court by judgment dated March 4, 1954. Defendants 3 and 5 to 7 obtained redelivery of the property from the second plaintiff on February 10, 1955. By an execution petition dated January 5, 1955 they sought to recover mesne profits and costs from the second plaintiff from and including the year 1117 till February 10, 1955. The second plaintiff objected to the execution petition. On his death, his son the third plaintiff who is the appellant in this second appeal, was impleaded as the legal representative. The execution court has now allowed mesne profits. It is unnecessary for the disposal of this appeal to relate the intermediate proceeding which had taken place, and it is sufficient to state, that the execution court allowed mesne profits from 1117 (inclusive) till February 10, 1955. On appeal being taken against its order, a further point of limitation was raised. The appellate court dismissed the appeal and hence this second appeal.

(2.) It is quite obvious, that the first plaintiff can be held liable for mesne profits only from Dhanu 18, 1121 when he came into possession of the property from the Receiver. But it was stated, that during the time the Receiver had been in the possession of the property, he had deposited the income in court, a part of which had been withdrawn from court by the first plaintiff. The first plaintiff is liable to disgorge whatever amount had been withdrawn from court, out of the deposits made by the Receiver; this is ordered accordingly.

(3.) The further point was whether the third plaintiff can be held liable for any amount. By the order under appeal he has been made personally liable. He was impleaded as the legal representative of the second plaintiff only after the redelivery of the property to defendants 3 and 5 to 7. As such legal representative, he is liable only to the extent of the assets of the second plaintiff which have come into his hands. The second plaintiff can be held liable only from the date of the assignment in his favour, as there is no evidence as to the date of the assignment. Counsel for the third plaintiff agreed before me, that the second plaintiff may be held liable from Dhanu 18, 1121 when possession was delivered over by the Receiver. The liabilities of the second and the third plaintiffs shall be as stated above.