RAMANATH KARMAKAR Vs. SHEIKH ASANULLA

JUDGEMENT

(1.) The appellant as plaintiff sued the respondent as defendant on a mortgage and having obtained a decree ex parte, purchased the mortgaged property in execution thereof, and upon confirmation of the sale, obtained delivery of possession on 20 October 1918. The respondent then instituted a suit for declaration of title to the property so purchased, assailing the ex parte mortgage decree as vitiated by fraud. He obtained an ex parte decree and recovered possession of the property in May 1926. The ex parte mortgage decree which the appellant had obtained having thus been set aside, the original mortgage suit was restored and retried and was again decreed, this time on contest, on 1 March 1928. In the course of this retrial the respondent prayed for an account being taken of the profits enjoyed by the appellant during his possession of the property from 20 October 1918 to the date in May 1926 when the respondent had regained possession. The Court left the question of the profits aforesaid open with the re-mark that the question might be determined on an application under Section 144, Civil P.C. On that and before the final decree was passed in the suit on 31 March 1929, the respondent, on 30 March 1928, made the present application under Section 144, Civil P.C., for being awarded the said profits. Thereafter in execution of the decree which the appellant had obtained, the appellant purchased the mortgaged property.

(2.) The application under Section 144, Civil P.C., was dismissed by the Munsif as not maintainable, but the Additional Subordinate Judge holding otherwise has remanded the case to the Court of first instance to be dealt with on the merits. Hence this appeal.

(3.) The contention of the appellant is that (the application of the respondent does not come within the purview of Section 144, Civil P. C, and that his only remedy, if any, is by a suit. What the appellant gains if this contention succeeds is obvious, because a suit for recovery of profits is now barred and a part of the claim would be barred even if his application under Section 144, Civil P.C., be treated as a plaint for the purpose. I am prepared to overrule this contention upon the short ground that the appellant having taken the decree in the mortgage suit with the reservation that the question of profits for the period of his possession would be determined on an application under Section 144, Civil P.C., and having reaped the benefit of that decree by execution, cannot be permitted to turn round now and challenge the maintainability of that very application when it has been made.