NARAIN DAS Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession of immovable property and for past mesne profits up to the date of the suit. The suit was filed on 14 September 1920, and it resulted in a decree on 17 May 1922. The learned Subordinate Judge held that the plaintiff was entitled to a decree for possession and granted him such a decree. He however remarked that the plaintiff had given no evidence about the amount of the mesne profits to which he was entitled, but that he was entitled to mesne profits, He then remarked: I shall therefore leave the matter to be determined in the execution department.

(2.) The operative portion of the judgment was in the following words: That the plaintiffs claim for possession be decreed with costs. He is held to be entitled to recover mesne profits for three years preceding the suit, the amount of which shall be determined in execution.

(3.) The decree which was prepared naturally reproduced the operative portion of the order in the judgment. The Subordinate Judge himself does not appear to have taken any steps to fix a date for an inquiry into the amount of the mesne profits. On 3 October 1922, the plaintiff decree-holder applied for execution of the decree for possession only and did not add any prayer for the ascertainment of the profits. The decree was executed and possession was delivered to him on 9th November 1922. Thereafter, on 3 July 1924, he applied for execution of the decree with a prayer for determining the amount of the mesne profits. The judgment-debtor objected to this application on the ground that the Court below should have dismissed the claim as there was no proof of the amount of mesne profits and further that the application for execution was not maintainable. On 8th November 1924, another Subordinate Judge made the order that the case was covered by Order 20, Rule 12, Sub-sections (b) and (c), and so the decree-holder should make an application for a final decree according to law. He considered that the application as presented was irregular and rejected it on that ground and to that extent only. No one appealed from that order, which became final. On 11th May 1925, the decree-holder applied for ascertainment of the mesne profits under Order 20, Rule 12, Civil P.C. The office reported that some court-fees were due from him inasmuch as he was claiming more mesne profits now than had been mentioned in the plaint on which court-fee had been paid, and also that he should pay process fee. Time was allowed to him, but he failed to deposit the amount within that time. On 23 May 1925, (p. 19), the Court, finding that the process fee and the court-fee required had not been paid till then, ordered that "the application be struck off for default on behalf of the petitioner".