LOKENATH SAHU Vs. DONDAPANI SAHU

JUDGEMENT

(1.) THIS appeal has been filed by judgment -debtors 1 and 3 against the reversing judgment of the lower appellate Court arising out of a proceeding under Section 47, Civil Procedure Code. The original plaintiff had brought Title Suit No. 2 of 1945 for recovery of possession after evicting defendants 1 to 9. He also prayed for mesne profits for the year 1944 -45. Eventually the suit was decreed for restoration of possession of the plaintiff and it was further ordered in the preliminary decree that all the defendants were liable for mesne profits for the year 1944 -45. The plaintiff took delivery of possession of the properties in dispute in due course with the assistance of the Court and got the decree for costs executed and realised. We are not concerned in this appeal with the decree regarding costs; but we are concerned merely with the decree for mesne profits.

(2.) THE preliminary decree was passed on 22 -7 -1946. The defendants went up in appeal before the first appellate Court snd also before the High Court but unsuccessfully. The preliminary decree passed by the Trial Court was confirmed in Second Appeal No. 305 of 1948 (A). Thereafter the plaintiff made application for ascertainment of the actual amount payable to him on the item of mesne profits. This was sent for enquiry and report of a Commissioner and Mr. B. Acharya, Pleader was appointed as a commissioner. The Commissioner sent his report on 7 -12 -1948 and on the basis of the report final decree was passed on 19 -4 -1949. The final decree in the operative portion mentions that the amount finally ascertained was Rs. 981/2/8 and further it was to be paid by all the defendants.

(3.) MR . Pal, appearing on behalf of the judgment -debtors -appellants, strongly relies upon two decisions in support of his contention that this is a question which ought to be gone into in the execution proceedings. I will first refer to the decision of Sheobalak Singh v. Achutananda Singh reported in AIR 1943 Pat 80 (B). That was a case between sets of co -sharers. Even though in form there was a decree that the defendants were liable to pay the mesne profits, their Lordships held that in substance the different co -sharers were liable to pay according to their shares. The plaintiff also in that case was a co -sharer along with the defendants. It does not appear from that decision that the question arose in excution only after the rights and liabilities of the parties were determined in a final decree. But the more important decision which has also been relied upon by their Lordships of the Patna High Court in that case is a decision of their Lordships of the Privy Council reported in Gurudas Kundu v. Hemendra Kumar, AIR 1929 PC 300 (C). On a careful consideration of the decision of their Lordships of the Privy Council, which is undoubtedly entitled to highest respect, I am of the view that the present case is not covered by it. In the case before their Lordships of the Privy Council, the order of the trial Court was to the following effect: