DILIP KUMAR CHATTERJEE Vs. HRISHIKESH BANERJI

JUDGEMENT

(1.) On July 8, 1946 Respondents Nos. 3 and 4 obtained a decree against Respondent No. 1, Hrishikesh Banerjee, in his personal capacity. In execution of that decree certain properties were brought to sale and was purchased by the present Appellant on August 4, 1947, for the sum of Rs. 5,150. This sale was confirmed on September 5, 1947 and possession through Court was taken on September 10, 1947. Respondents 1 and 2, in their capacity as executors to the estate of their father late Mahendra Nath Banerjee, filed an application under Order XXI, Rule 100, alleging that they were in possession of the properties as executors and neither of them being judgment-debtor in their capacity as executors they had been wrongfully dispossessed and they should be put into possession. The application was successful and an order was passed on February 26, 1948 directing that the applicants, i.e., Hrishikesh Banerjee and Kumud Ranjan Banerjee in their capacity as executors to the estate of late Mahendra Nath Banerjee be put into possession. An application under Order XXI, Rule 90, of the Code of Civil Procedure was filed by Hrishikesh Banerjee in his personal capacity. That application was allowed on the September 11, 1948. Another application was filed by Hrishikesh Banerjee on the same date, viz., September 27, 1941, in his personal capacity under Order IX. Rule 13 of the Code of Civil Procedure. That was allowed on the April 10, 1948. On July 26, 1948, the Respondents 1 and 2 as executors to the estate of late Mahendra Nath Banerjee filed an application purporting to be one under Section 144 of the Code asking for restoration of possession of the properties. Therein they mentioned their intention to make in future an application after restoration of possession for damages and for mesne profits. The court passed an order allowing this application for restoration of possession. On the September 15, 1948, the application out of which the present appeal has arisen was filed. The application purported to be by Hrishikesh Banerjee and Kumud Ranjan Banerjee was "for selves and as executors to the estate" of late Mahendra Nath Banerjee. The vakalatnama was, however, given by them only as executors. Below the signatures of the Petitioners also there appeared only the description "as executors "to the estate of late Mahendra Nath Banerjee." The trial court come to the conclusion that they as executors had no locus standi to file application for mesne profits and also that restoration could not be obtained against the present Appellant as he was a bona fide purchaser for value. The learned court, therefore, though agreeing that in a proper case the court will pass order for restoration under Section 151 of the Code of Civil Procedure even when provisions of Section 144 were not applicable, rejected the application. On appeal by Hrishikesh Banerjee and Kumud Ranjan Banerjee the learned Additional District Judge, Alipore, thought it proper that the application which appeared to have been filed for amendment of the application and the vakalatnama dated September 15, 1948, by describing them not only as executors but also in their personal capacities should be allowed. "He, accordingly, allowed the application for amendment and remanded the case to the trial court for disposal in accordance with law after taking evidence on the question whether the present Appellant before us was a bona fide auction-purchaser or not. The present appeal is by the auction-purchaser and is directed against this order of the appellate court.

(2.) In the first place, I am clearly of opinion that there is no question here of amending the application. As already stated, in the application Hrishikesh Banerjee and Kumud Ranjan Banerjee did describe themselves for selves and as executors. The defect was in the fact that the vakalatnama was given by them only as executors. I cannot see how a vakalatnama by a party can be ordered to be amended in this manner.

(3.) It has been argued, however, by Mr. Bose on behalf of the Respondents 1 and 2 that the application for mesne profits should succeed even though the application is by Hrishikesh Banerjee and Kumud Ranjan Banerjee as executors. He based this contention on the fact that on an application by these two persons in their capacity as executors under Order XXI, Rule 100 of the Code of Civil Procedure, the court did pass an order under Order XXI, Rule 101 of the Code. His contention is that the deprivation of possession of these two persons as executors being due to a mistake of the court it is the court's duty to put the matter right and for that purpose the court should exercise its jurisdiction under Section 151 of the Code of Civil Procedure to give him mesne profits.