ANNADA KUMAR ROY Vs. SHEIKH MADAN

JUDGEMENT

(1.) The appellants are decree-holders. They have appealed against an order dismissing their application for execution on the ground that Annada who is one of the persons seeking execution of the decree is neither one of the original decree-holders nor an assignee of any of the original decree-holders and on the further ground that their previous application for execution having been dismissed for default and the application having been treated as an application in the original suit the claim of the plaintiff for recovery of mesne profits from the defendants cannot be sustained. In other words it has been held that the effect of the dismissal of the previous application for execution on the ground of default amounted to a dismissal of the claim for mesne profits. Both Courts have concurred in this view and the present appeal is directed against the concurrent judgments.

(2.) In second appeal in this Court two-points have been raised on behalf of the appellants. It has been contended in the first place that it was not open to the respondents judgment- debtors to raise the plea that Annada Kumar Roy was not entitled to execute the decree-on the principle analogous to the principle of res judicata by reason of the previous orders made in the course of execution. The second contention is that the lower appellate Court is in error in treating the application in execution as an application in the original suit and in holding that the dismissal of the previous application for ascertaining of mesne profits on 27 August 1927 had the effect of dismissal of the claim of the plaintiffs, decree-holders, for recovery of mesne profits from the defendants. A few facts require to be stated in order to understand the contentions raised by this appeal. It appears that the decree for recovery of khas possession was obtained by two persons Rasik and Jadunath who were purchasers at a revenue sale. Rasik sold his share to Annada by a conveyance. Annada did not get himself substituted in the decree in place of Rasik and the decree was obtained by Rasik and Jadu Nath. It appears that the decree directed ascertainment of mesne profits in the course of execution. This direction in the decree was already contrary to the provisions of Order 20, Rule 12, Civil P. C, of 1908, which had come into operation when this decree was passed. It appears however that neither party carried this matter to a higher Court to have the form of the decree rectified or corrected with the result that the decree directing ascertainment of mesne profits in execution stands.

(3.) It appears next that prior to this application in execution other applications for execution of the decree were made by Annada Kumar Roy along with other decree-holders. It is necessary in particular to mention the previous execution case No. 108 of 1925 where the application was made for determination of mesne profits at the instance of Annada also. This application was refused and an objection on the score of limitation and on the score of incorrectness of the decree was raised and a general, objection was taken that the application for execution could not be maintained. The matter was carried to the appellate Court and eventually the lower appellate Court found that the execution case was maintainable it is said with reference to the first point raised by this appeal that this decision operates as a bar and precludes the contention that the decree could not be executed by Annada, a contention which has prevailed with the lower appellate Court and which is challenged as wrong by this appeal. We are of opinion that the argument of the appellants in this behalf is well founded and must prevail. There can be no doubt having regard to the previous direction given in the execution of the decree at the instance of Annada that this fact prevents or precludes the judgment- debtors contending as they are doing now that the decree cannot be executed at the instance of Annada on principles analogous to the principles of res judicata which have been enunciated in the very early case of Mungul Pershad Dichit V/s. Girija Kant Lahiri (1882) 8 Cal 51.