GANGADHAR MANIKA Vs. BALKRISHNA SOIROBA KASBEKAR

JUDGEMENT

(1.) In Civil Suit No. 2 of 1901, in the Court of the First Class Subordinate Judge of Karwar, a decree was passed in favour of the plaintiff directing him to get possession of the suit lands from defendants Nos. 1 to 3 and coats, and plaintiff was to recover from the 1st defendant the amount of the value to be ascertained in execution for 33 Khandies of paddy at the rate then prevailing in respect of the three years previous to the date of suit, which remained after deducting the cash amounts paid to Government for the said land by him for the said years, and plaintiff was to recover from the 1st defendant the produce from the date of suit, viz., from 20th of December 1900, upto realization of possession, or it the possession was not obtained early, plaintiff was to recover the produce of three years from the date of the decree. Defendant No. 2 was liable to pay the plaintiff the rent and produce from July 1900. The income from the date of suit was to be ascertained in execution. That decree was passed in March 1902. The plaintiff got possession of the suit land in 1903. The plaintiff has filed this Darkhast No. 285 of 1917 in which he describes in what modes the assistance of the Court was required: Rs. 50 was due in respect of mesne profits for three years before suit. Profits from date of suit up to delivery of possession, i.e., 1900-1901- 1902, at the rate of 11 Khandies per year; total of three years was 33 Khandies. The value of which at the rate of Us. 46 per Kumbh was Rs. 75-14-1. Deducting from this Rs. 15-11-0 being the amount of assessment for three years, the balance due was Rs. 60-0-4. Therefore the total amount due was Rs. 110-0-4 which sum or any other sums which might appear to the Court proper might be determined as due in respect of profits recoverable as per decree together with the coats of the darkhast might be realized by attachment and sale of the moveable property belonging to defendant 2 but in the possession of opponents Nos. 1 to 5.

(2.) It is clear then that this was an application in execution and the plaintiff s pleader admitted that in the trial Court. But although he admitted that it was an application in execution, it was contended that the application for the ascertainment of mesne profits could not be treated as cue in execution, and therefore it was not barred by Articles 181 and 182 of the Indian Limitation Act. The learned trial Judge said that an application in execution for recovery of costs was filed in 1906. No other application was filed in execution until the present one had been made. He found, therefore, that the application wan governed by Articles 181 and 182 and rejected it as time-barred. In appeal the learned District Judge referred to the circumstances in which the application was made. It appears that the original decree was obtained by a religious foundation against its defaulting tenant. It is true that the stewards of the foundation neglected to enforce the decree and it was believed that by this neglect the decree had become useless, The neglectful steward was removed from his office and a successor was appointed who sued his predecessor to recover damages which the temple had sustained by his neglect. When that suit came on, it was dismissed by Mr. Vernon, who was then the District Judge, on the ground that it was still possible to recover mesne profits as no period of limitation was prescribed for their ascertainment. The learned District Judge in appeal therefore seemed to think that he (should follow the principle stare decisis and he also referred to the decisions of Puran Chand v. Roy Radha Kishen (1891) I.L.R. 19 Cal. 132, F.B.; Muhammad Umarjan Khan v. Zinat Begam (1903) I.L.R. 25 All. 385; Waliya Bibi v. Nazar Hasan (1904) I.L.R. 26 All. 623; and Narsingh Das v. Debi Prasad (1918) I.L.R. 40 All. 211 in support of Mr. Vernon s decision. He, therefore, allowed the appeal and hold that the application was not barred by lapse of time.

(3.) Now this decree was passed under the Code of 1882 and the sections applicable were Sections 211, 212 and 244, and under Section 211 when the suit was for recovery of possession of immoveable property yielding rent or other profit, the Court might provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree was made, or until the expiration of three years from the date of the decree whichever event first occurred. By Section 212 when the suit was for the recovery of possession of immovable property and for mesue profit which htd accrued on the property during a period prior to the institution of the suit and the amount of such profits was disputed, the Court might either determine the amount by the decree itself or might pass a decree for the property and direct an inquiry into the amount of mesne profits and dispose of the same on further orders. Therefore Section 211 dealt with mesue profits from the date of the suit, while Section 212 dealt with past mesne profits, and although in both cases by the decree itself the Court might ascertain the amount, in Section 211 nothing was said as to how the mesne profits were to be ascertained if the Court did not provide for the amount in the decree, while under Section 212 the Court might direct an enquiry as to the amount of past mesne profits and dispose of the same on further orders. Then by Section 244 the following questions should be determined by order of the Court executing a decree and not by a separate suit, viz., (a) questions regarding the amount of any mesne profits as to which the decree had directed inquiry; (that must refer to past mesne profits), (6) questions regarding the amount of mesne profits or L interest which the decree has made payable in respect of the T subject-matter of a suit between the date of the institution and the execution of the decree or the expiration of three years from the date of the decree, and (c) any other questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof. The ordinary meaning, therefore, of that section would be that certain questions were to be determined by the order of the Court in execution and not by a separate suit, viz., the amount of past mesne profits, the amount of future mesne profits, or, lastly, any other questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It would then follow logically that any question with regard to past mesne profits was a question in execution. Clearly, then, in drawing up the present decree the Court correctly interpreted Section 244, because it distinctly provided that the amount in cash value of the mesne profits, past and future, should be ascertained in execution. At first sight, therefore, it would appear beyond all argument that the application for the ascertainment of the mesne profits, past and future, came within Article 182 of Schedule I of the Indian Limitation Act. But there is no doubt that that is not the view which has been taken by the Calcutta and Allahabad High Courts, and most probably Mr. Vernon in his first decision thought he should follow the Full Bench decision in Puran Chand v. Roy Radha Kishen (1891) I.L.R. 19 Cal. 132, F.B., which was to the effect that proceedings for the ascertainment of mesne profits after a decree awarding possession were proceedings in continuation of the suit and were not proceedings in execution, as until the amount of mesne profits had been ascertained, there would be no final decree. However that may be, that view was not accepted in fall by Mr. Justice Ranade in Uttamram v. Kishordas (1899) I.L.R. 24 Bom. 149. There was a decree dated the 3rd of July 1878 which awarded possession of certain land with mesne profits to be ascertained in execution, but the decree specified no time down to which the mesne profits were to be computed. The question there was whether the decree being drawn up in that form, could be construed as giving mesne profits for a period longer than three years from the date of the decree, and it was held that that construction could not be put on the decree. The point which is now in issue may not have been directly in issue in that ease, but Mr. Justice Ranade at page 155 said: In the present case the decree did fix the time from which mesne profits were to be allowed, and in the previous Darkhast the profits were claimed for the period up to 1881, and a claim was made for the future profits also. It was this latter claim which was not specially noticed in the order Passed in the Darkhast, which only gave mesne profits up be 1882. The contention of the appellants is that as long as the mesne profits for 1882 had not been ascertained, as directed by the High Court decree, no period of limitation governed the claim for the same. The authority of the rating in Puran Chand v. Roy Radha Kishen (1891) I.L.R. 19 Cal. 132 F.B., followed in Prayag Singh v. Raju Singh (1897) I.L.R. 25 Cal. 203, was cited, but the of view taken by the Calcutta High Court on the operation of Articles 178, 179 in such cases was not accepted by the Allahabad High Court, and this Court in Bhagwan v. Ganu (1899) P.J. 145 expressed its agreement with the Allahabad High Court s view as opposed to the Calcutta rulings. In this last case the point was considered with reference to the operation of Section 89 of the Transfer of Property Act, and it was held that a decree for redemption was subject to the operation of limitation if no proceeding were taken in time under Section 89 to make the decree absolute.