KESHRI Vs. BHAWANI RAI

JUDGEMENT

(1.) THIS second appeal reveals extraordinary delay in this litigation. The plaintiffs brought a suit for redemption of a mortgage and mesne profits, in the Court of the Munsif of Ballia as long ago as 1914. According to the Munsif, the plaintiffs failed to prove their title, and consequently the suit was dismissed. On appeal by the plaintiffs, the learned District Judge, on the 26 January 1916, remanded the case to the Munsif for trial on the merits. The Munsif, on the 12 September 1916, gave the plaintiffs a decree for redemption and mesne profits but directed that "the identity of the plots and the amount of the profits should be determined hereafter in the execution department." On appeal the learned District Judge, on the 16 May 1918, sent the case back to the Munsif to decide the identity of the plots mortgaged and dismissed so much of the suit as related to mesne profits. From this order an appeal was filed to the High Court. On the 29 July 1919, this Court allowed the appeal. It upheld the Judge's order as regards the identity of the plots mortgaged and sent the case back to the Munsif to determine the amount of mesne profits. In the meantime, it appears that the Judge's order of remand was sent to the Munsif and he, on the 9 September 1918, found what were the plots mortgaged and disallowed the claim for damages as directed by the District Judge. There was an appeal from this order to the District Judge a nd it came before him for disposal on the 17 April 1920. By that time the order of the High Court of the 29 July 1919, seems to have found its way to the Courts at Ballia and was before the lower Appellate Court when it passed its order. It came to the conclusion that as the High Court had ordered the Munsif to determine the amount of mesne profits, it was quite unnecessary for it (the lower Appellate Court) to pass any orders on the appeal before it and it formally dismissed the appeal. Then the Munsif, on receipt of the High Court's order of remand, found that the amount due for mesne profits was Rs. 504. From this order an appeal was filed before the District Judge by the plaintiffs claiming a larger sum, and a cross- appeal by the defendants, alleging that nothing was due. Both the appeal and cross-appeal were decided by the learned District Judge on the 10 of August 1921. He found on the cross-appeal of the defendants that the amount due for damages was Rs. 504 as found by the Munsif. That is a finding of fact and cannot be challenged here. He went on, however, to find that, inasmuch as there was no appeal from the order of the lower Appellate Court, dated the 17 April 1920, the matter was res judicata and final, and no amount of damages could be given to the plaintiffs in the decree. It seems to us that it is impossible to uphold this contention. The order of the High Court ordering a remand wiped out all intermediate proceedings which may have been taken by the Courts below. In our opinion, this appeal must succeed. A final decree will be prepared giving the plaintiffs possession of the plots mentioned in the Munsif's decree of the 9th September 1918, plus a sum of Rs. 504 damages for mesne profits together with interest at 6per cent. from the 26 October 1920, till realization plus the costs of this appeal which willinclude fees on the higher scale.