PADMALAYA Vs. SHYAMSUNDAR SAHU

JUDGEMENT

(1.) This is a second appeal by the decree-holder challenging the appellate order of the learned District Judge reversing the rejection of an objection under Section 47 of the Code of Civil Procedure by the executing court,

(2.) Title Suit No. 109/63 of 1965/1966 was one for partition wherein defendant No. 4 had been appointed as receiver. The suit terminated by compromise on 612-1966 and a compromise decree was passed which absolved the receiver from liability for mesne profits. An attempt of the plaintiff to have a receiver appointed by application dated 6-5-1967 failed on the ground that there was and proceeding then pending in court. On 7-7-1967, an application for final decree was filed where an application for appointment of receiver was made. That application was rejected on 23-9-1969. A fresh application was filed on 2511-1969 for appointment of receiver which was registered as Miscellaneous Case No. 64 of 1969 and by order of the Court dated 22-12-1970, defendant No. 4 was appointed as receiver. On 4-5-1971, plaintiff applied to the trial court for ascertainment of mesne profits for the period between 6-12-1965, when the suit terminated by compromise and 22-12-1970, when defendant No. 4 came td be appointed as receiver. A Commissioner was appointed for the purpose and he furnished a report which was objected to. Overruling the objection, the learned Trial Judge directed a final decree to be drawn up on 1-5-1972. Execution Case No. 49 of 1972 was filed seeking to recover a sum of Rs. 36,650/- on account of mesne profits for the period when there was no receiver. There was objection to the executability of the decree on the ground that there was and direction in the final decree for the recovery of the said sum. The objection was overruled by the executing court.

(3.) Against the decision of the executing court, a revision was filed being Civil Revision Nd. 55 of 1974 in this Court and a Miscellaneous Appeal being No. 7 of 1974 was carried before the learned District Judge. The Civil Revision was dismissed on 10-4-1975 at the stage of admission. The learned District Judge after hearing parties allowed the appeal and held that final decree had not fixed the liability for mesne profits against defendant No. 4.