MAHARANI SURUT SOONDARI DEBI Vs. HURRO DOORGA CHOWDHRANI

JUDGEMENT

(1.) THE Respondent in this case was the Plaintiff in the Court below. She sued the husband of the present Appellant to recover possession of certain lands together with the sum of Rs. 3647 10a. 9p., the estimated amount of mesne profits for two years ten months and twenty days from the 1st Assin 1273, to 20th Srabun 1276. In that suit a decree was made for the Plaintiff to recover possession of the lands, and also the mesne profits, not from a time previous to the date of the suit, as claimed, but from the date of the suit to the date of recovery of possession, to be ascertained by inquiry at the time of the execution of the decree, with interest from the date of the ascertainment at 6 per cent, per annum. From that decree there was an appeal to the High Court. The High Court, by its decree, amended the decree of the Lower Court by giving the mesne profits from the 1st Assin 1273, to the 20th Srabun 1276, in addition to those which had been awarded by the Lower Court. The High Court also stated that the mesne profits were to be recovered with interest from the date of ascertainment. Therefore, according to both decrees, the mesne profits were to carry interest only from the date of ascertainment. It is clear that the Court in executing the decree, could not vary or add to it by awarding anything beyond that which was originally decreed. When the decree came to be executed it was referred to an Ameen to ascertain the amount of mesne profits, and he ascertained what was the rent which might have been obtained from the estate. That he treated as the mesne profits of the estate, but he added no interest year by year upon the amount. The mesne profits so ascertained amounted to Rs. 13,359 and some odd annas, and the Lower Court made an order in execution for that amount. Upon that there was an appeal to the High Court by both parties, first on the ground that the assessment was excessive, and secondly, on the part of the Plaintiff, that in assessing the mesne profits the Court below ought to have allowed interest year by year upon the amount which could have been collected, and further interest upon the aggregate amount from the date of its order. The High Court upon that appeal having heard the argument of counsel, thought that the lower Court was wrong in not having allowed interest upon the rental year by year, upon the ground that the decree holder was entitled, not merely to the rental less the collection charges, but also to interest thereon year by year as compensation for the loss he had sustained by not having the use of his money during the period he was kept out of possession. The question is, whether the High Court, which by its decree was merely executing the original decree of the High Court, did not by giving that interest really add to and alter the decree which was to be executed. Now that depends really upon the question what was the meaning of the term " mesne profits."

(2.) IN their Lordships' opinion, the amount which might have been received from the land, deducting the collection charges, was the profits of the land. The loss of interest year by year upon those profits was merely damages sustained by the Plaintiff in consequence of her having been prevented from receiving the profits as they became due. But the original decree did not award those damages, and the High Court by awarding them added to the decree which was in the course of execution.

(3.) IF the present contention is correct, the term mesne profits in that case included interest thereon year by year, although the Court refused to allow it. It appears to their Lordships that the decision of the Lower Court in executing the decree was in accordance with the decree, and that the decision of the High Court by adding the interest from year to year exceeded the original decree.