PANCHORAM TEKADAR Vs. KINU HALDAR

JUDGEMENT

(1.) This is an appeal against an order passed by the lower Appellate Court confirming an order made by the Court of first instance in certain execution proceedings relating to mesne profits. It appears that the respondent in the present appeal obtained a decree against the present appellant for recovery of possession of a certain piece of land with mesne profits.

(2.) It is altered that the plaintiff-respondent had been dispossessed on the 23rd Chait 1311 and mesne profits were claimed for the years 1312 to 1315. The suit was instituted on the 6th March 1907 in the Munsifs Court and a decree was obtained by the plaintiff for recovery of possession of the land in suit together with mesne profits from the date of dispossession up to the date of the restoration of possession and it was directed that the amount of mesne profits would be determined in the execution proceedings. The decree was appealed against but it was confirmed, The execution proceedings for the purpose of determining the amount of mesne profits then commenced and, as a result, it was determined that the plaintiff was entitled to recover mesne profits for 1312,1313 and 1314 but was not entitled to any mesne profits for 1315 because during that year, he had himself taken away the crops on the land. The total amount of mesne profits so ascertained was Rs. 1,630-8 which sum included interest amounting to Rs. 294.

(3.) An appeal was preferred against the decision of the executing Court allowing mesne profits to the plaintiff to the extent of that sum and in support of it various points were taken which also had been argued before the Court of first instance. For the purposes of this appeal, the only point which it is necessary for us to consider is that urged on behalf of the judgment- debtor, the present; appellant, namely, that the executing Court being a Munsif s Court was not entitled He award mesne profits of a higher amount than Rs. l,000, that being the ordinary pecuniary jurisdiction of such Court. In support of that contention, reliance was placed on the case of Golap Sundari Debi v. Indra Kumar Hazra 13 C.W.N. 493 : 1 Ind. Cas. 86 : 9 C.L.J. 367 : 6 M.L.T. 360. Both the Court of first instance and the lower Appellate Courts held that, that case had no application whatever to the facts of the present case, that being a suit brought for accounts and this High Court having held in that case that it was the duty of the plaintiff to ascertain approximately before instituting the suit the amount which he claimed to be due on taking accounts so as to determine the Court in which the plaint should be filed. In that case, the sum which was found to be due by the Court exceeded Rs. 8,000. In the present case, both the lower Courts, relying on the decision of this Court in the case of Rameshwar Mahton v. Dilu Mahton 21 C. 550, were of opinion that, under the provisions of Section 211 of the old Code of Civil Procedure, which corresponds with Order XX, Rule 12 of the new Code, the Munsif s Court had jurisdiction in execution of the decree to award as mesne profits the sum allowed in the present case.