USUF ALLI MUJAWAR ALLI Vs. AMIN CHANDESAHEB

JUDGEMENT

(1.) The plaintiff obtained a decree in Suit No. 871 of 1906, in the Court of the First Class Subordinate Judge of Sholapur, on December 10, 1907, by which he was awarded possession with past and future mesne profits of the property in suit. In March 1908 he filed a Darkhast for executing the decree for recovering possession and the past mesne profits, Meanwhile the defendant preferred an appeal, but the appeal was dismissed, The defendant preferred a second appeal and in the second appeal further execution of the decree was stayed under the orders of the High Court, after three sureties passed security-bonds for the due fulfilment of the decree that might be eventually passed against the defendant. The High Court confirmed the decree of the first Court on September 14, 1915, and the execution proceedings that had been stayed were continued. The plaintiff recovered possession and the past mesne profits in July 1916, and the proceedings terminated, Since then the question of future mesne profits had not been agitated.

(2.) The decree was passed in 1907 under the Civil Procedure Code of 1882 according to the provisions of which mesne profits would have to be ascertained in execution. The appellate Court might have passed a decree under the Code of 1908 directing an inquiry as to mesne profits under Order XX, Rule 12, but it refrained from doing so. In April 1918, the plaintiff made an application for determination of the future mesne profits from the date of the decree. This application was treated as an application in the suit and the decree was made final in February 1919 determining the amount of mesne profits from 1906 to 1916. It was wrong to consider that application as an application in the suit and it must be, for the purpose of this appeal, treated as a proceeding in execution. The sureties were not made parties in this proceeding. But when the mesne profits had been ascertained, the present Darkhast was taken out by the plaintiff on January 3, 1920, for recovering the amount of future mesne profits so determined from the judgment-debtor or from the three sureties. Both the lower Courts have held that the Dark hast was time-barred as against the sureties.

(3.) It may be that the sureties were not necessary parties in the plaintiff's application for ascertaining the mesne profits : see Raghubar Singh V/s. Jai Indra Bahadur Sing (1919) 22 Bom. L.R. 521. But it does not follow that although the sureties were not necessary parties to the application to ascertain the amount of mesne profits, the decree had been kept alive against them by reason of that application. In Puran Chand V/s. Roy Radha Krishen (1891) I.L.R. 19 Cal. 132 F.B., it was held that neither Art. 178 nor Art. 179 of the Indian Limitation Act applied to an application to ascertain the amount of mesne pro6ts awarded by a decree in accordance with the provisions of Section 211 or 212 of the Code of Civil Procedure 1882. The learned Judges there seemed to have thought that although the proceedings for the ascertainment of mesne profits were proceedings in execution, still they were of an interlocutory nature and that there was nothing that could be executed under Section 255 of the Code until the actual amount of mesne profits had been found and determined. All the authorities on that question were referred to by this Court in Gangadhar V/s. Balkrishna (1920) 23 Bom. L.R. 263 in which it was held that an application for the ascertainment of mesne profits awarded by a decree, prior as well as subsequent to its date, was not a proceeding in the suit but a proceeding in execution and came within Art. 182 of the Indian Limitation Act of 1908. The decision in the case of Ramana V/s. Babu (1912) I.L.R. 37 Mad. 130 was followed in preference to the decision of the High Courts of Calcutta and Allahabad. Then in Narayan V/s. Timmaya (1906) I.L.R. 31 Bom. 50 : 8 Bom. L.R. 807 it was held that the application to execute the decree against the surety was barred by time since the decree could not be treated as passed jointly as against the judgment-debtor and the surety, within the meaning of Art. 179, explanation I, paragraph 2, of the Second Schedule to the Indian Limitation Act