PRATAP CHANDRA BURUA Vs. RANI SWARNAMAYI

JUDGEMENT

(1.) The plaintiff in 1855 brought a suit to recover possession of land, and in that suit he asked for wasilat from the time of dispossession. As 1 understand the claim, it was for mesne profits from the time when the plaintiff was dispossessed up to the time of the decree. The Zilla Court decided the case in 1859, and held that the plaintiff was not entitled to possession. They said nothing as to the mesne profits, and it is clear that, in that suit, having decided against the plaintiff's right, they could not have awarded mesne profits. The plaintiff appealed to the High Court; and in 1863 that Court reversed the decision of the Zilla Court, and decreed that the plaintiff was entitled to recover possession; but the High Court did not decree any mesne profits whatever. The question is whether the plaintiff is entitled to bring a new suit for wasilat from the time the Zilla Court decreed the case in 1859 up to the time when the plaintiff obtained possession under his decree. It is contended that the plaintiff is not entitled to bring a separate action for those mesne profits. It is not very clear whether it is referred to us to determine whether his right is barred by reason of section 7 or by reason of section 196. It is clear that the question is not referred to us to decide whether the suit is barred by section 2, Act VIII of 1859, upon the ground that there has been a decision of a competent Court deciding against his right to the mesne profits. With regard to section 7, which Mr. Justice Norman says does not appear to have been sufficiently considered, it appears to me that the plaintiff was not bound to include in his suit, which he brought in 1855, a claim for the mesne profits from the time he might obtain a decree up to the time he might obtain possession under that decree. Section 7 says, "that every suit shall include the whole of the claim arising out of the cause of action." The plaintiff's claim to mesne profits from the time he might obtain a decree to the time he might obtain possession under that decree was not a claim which he had at the time when he filed his plaint; and he would not therefore include that claim for mesne profits in his plaint. Independently of that, I think that he was not bound to include his claim for mesne profits in the suit for possession. Section 10 of Act VIII of 1859 is very clear upon that point. He is clearly not barred by reason of his not having included in his suit a claim for mesne profits from the date of the decree in 1859 to the time of his obtaining possession in the suit which he brought in 1855. He could not, in his suit commenced in 1855, have included a claim for mesne profits from 1859 to 1863.

(2.) It was contended (though I do not see that that point has been referred to us), that the suit will not lie, in consequence of section 11, Act XXIII of 1861, which enacts that "all questions regarding the "amount of any mesne profits which, by the terms of the decree, may have been reserved for adjustment in the execution of the decree, or of any mesne profits or interest which may be payable in respect of the subject-matter of a suit between the date of the institution of the suit "and execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit." The words all questions regarding the amount of any mesne profits in that section had been held by a Full Bench of this Court, in Mosoodan Lal v. Bhikari Sing Case No. 249 of 1865; 15th September 1866 (B.L.R. Sup. 602), not to mean questions relating to the right to mesne profits, but questions relating to the amount of mesne profits which are made payable by virtue of a decree. If the Court had held that plaintiff was entitled to recover the mesne profits and had ordered that the amount of these mesne profits should be assessed in execution, then this section would have applied; but inasmuch as the Court which had to decide the rights of the parties did not pass any decree with regard to mesne profits, those mesne profits were not payable under the decree within the meaning of that section, so as to authorize the Court of execution to assess the amount of it.

(3.) The Full Bench Decision of this Court in Mosoodan Lal v. Bhikari Sing Case No. 249 of 1865; 15th September 1866 (B.L.R. Sup. 602), to which I have referred, appears to be at variance with the decision on the same section of the Code by the Madras High Court in Chennappa Nayudu v. Pitchi Reddi 1 M.H.C.R. 453; but in a subsequent case of Lakshmi Narasimhalu v. Chatrazu Jagannadham Pantalu 3 M.H.C.R. 287, that Court stated that the High Court at Bengal has put a more restricted construction upon section 11, Act XXIII of 1861, than they had done; but they did not express any opinion as to whether they considered that decision to be right or wrong, as the decision of the case before the Madras High Court did not render it necessary for that Court to decide whether they concurred with the decision of the High Court of Bengal, or not. The High Court at Bombay, in the case of Radhabai v. Radhabai 4 B.H.C.R. A.C. 181, have concurred in the view which was taken by the Bengal High Court with regard to the construction of section 11. It does not appear to me that there is any sufficient ground for thinking that the decision of Mosoodan Lal v. Bhikari Sing (1) is erroneous. The High Court at Agra have taken another view of this point. They seem to consider that where there is a decree for possession of land, it necessarily follows that there must be mesne profits to be awarded between the date of the decree and the time when the plaintiff obtain possession. That is. as I understand the Agra High Court decision in Oonkur Doss v. Heera Sing 1 Agra H.C.R. 141. It appears to me, however, that it is impossible to say that because a decree is passed holding that a plaintiff is entitled to possession of land, there necessarily must be mesne profits to be assessed for a period subsequent to that decree. It is clear I think that the execution of a decree for possession is not to be stayed so far as delivery of possession is concerned, until the amount of mesne profits from the date of delivery is ascertained in execution. If a plaintiff, having obtained a decree for possession, is not to be put into possession until the Court has ascertained what amount of mesne profits he is entitled to recover from the date of the decree, a local investigation may be ordered, and a very long period may elapse in ascertaining the amount of mesne profits, during the whole of which time the plaintiff must be kept out of possession and the defendant rendered liable to continuing mesne profits. If, then, the Court is justified in executing a decree for possession by putting the plaintiff into possession before it has assessed the amount to be paid for mesne profits subsequent to the date of the decree, it does not necessarily follow that the plaintiff will be entitled to have execution against the defendant for mesne profits subsequent to the date of the decree for possession. It appears to me that there is no more reason for saying that an amount for mesne profits subsequent to the date of the decree for possession will necessarily be payable, than there is for saying that interest will necessarily be payable under a decree for a principal sum of money. The question of the right to mesne profits is not to be tried in a Court of execution; the only thing a Court of execution is to try is the amount of mesne profits when mesne profits have been awarded by the decree.