KUNWER SEN Vs. SOHAN LAL

JUDGEMENT

(1.) This is a decree-holder's second appeal from the order of the judge Small Causes Court, Agra, functioning as Civil Judge, allowing the judgment-debtor's objection under Section 47, C. P. C. against the execution of a decree for recovery of mesne profits of a shop. The appellant decree-holder, Kunwer Sen, filed a suit for the ejectment of Mohan Lal, the father of the present judgment-debtor Sohan Lal, and for recovery of rent and mesne profits till the date of possession. The suit was decreed. The concurrent findings of the Courts below are that the judgment-debtor instead of vacating the shop, put his cousin, one Hira Lal, in possession after securing for him an order of allotment from the Rent Control and Eviction Officer which was obtained by collusion. The appellant decree-holder made representations before the Rent Control and Eviction Officer that the allotment order was obtained by fraud for the purpose of defeating the decree for ejectment, and thereupon that order was cancelled. After this Hira Lal filed a suit for a permanent injunction to restrain the decree-holder from executing the decree for ejectment against him and obtained a stay order. This order too was ultimately vacated and Hira Lal's suit dismissed. The decree-holder succeeded in obtaining possession on 18th August 1955. He claimed mesne profits for the period between 26-12-1953 to 18-8-1955 at the rate of Rs. 55/.- p.m. from the judgment-debtor. The latter filed an objection that he was not liable to pay any compensation for the period when the house was occupied by Hira Lal. This objection was rejected by the trial Court. On appeal the learned Judge in effect confirmed the findings of the trial Court and held that the judgment-debtor did not vacate the accommodation on 26-12-1953 and that the allotment order in favour of Hira Lal was collusive. He however held that the decree-holder could not claim any mesne profits for the period during which Hira Lal filed his own suit for injunction and was in occupation by virtue of the stay order obtained by him. Accordingly he modified the order of the trial Court and held that the decree-holder could claim mesne profit from the judgment-debtor only till 15th March 1954 but not for the subsequent period. The decree-holder has now come to this Court in second appeal.

(2.) I have heard learned counsel for the parties and I am satisfied that the order of the lower appellate Court is erroneous. In taking the view that the judgment-debtor was not responsible for the occupation of the accommodation by Hira Lal after 15-3-1954 he overlooked the fact that Hira Lal was the judgment-debtors' own dummy. If a judgment-debtor against whom a decree for ejectment has been passed, instead of vacating, puts a dummy into possession he will be liable for mesne profits until the accommodation is vacated by his dummy and the decree-holder is put into possession, and it will be no defence that the man after a certain date continued in possession on his own or defied the judgment-debtor with whom he had colluded earlier. Collusive possession is fraudulent possession, and a judgment-debtor who was a party to such fraud cannot escape liability to the decree-holder for the consequences of his collusive action by pleading that he was not responsible for the acts of the person whom he had put in possession for the purpose of cheating the decree-holder of the fruits of the decree. He will be responsible, like Frankenstein, for all the acts of his creature. I think the judgment-debtor is as much liable for mesne profits for the period after 15-3-954 as for the period before it.

(3.) I allow this appeal with costs, set aside the order of the lower appellate Court and restore that of the trial Court.