SRI GANESHJI MAHARAJ Vs. LALTA PRASAD

JUDGEMENT

(1.) This is an appeal from an order passed by the Additional Subordinate Judge of Cawnpore in the execution department. A suit was brought by one Lalta Prasad against Sri Ganeshji Maharaj under the management of Shiam Lal, Shiam Lal, and two other defendants, for partition of a one-third share and mesne profits for six years prior to the date of the institution of the suit and subsequent mesne profits up to the date of possession. A preliminary decree was passed on the 27 of June, 1918, for possession and for mesne profits of the past six years and future. The decree-holder obtained possession of his one-third share and took out execution for recovery of mesne profits by sale of the one-third share of the house, belonging to Sri Ganeshji Maharaj. The objections made on behalf of the endowment, through its manager, so Ear as we are concerned in this appeal; are two: (1) that interest should not be allowed on the mesne profits from ear to year, and (2) that the amount should be recovered from Shiam Lal personally and not from the endowment.

(2.) objector, Judgment-debtor, succeeded on the first ground, but in appeal it is further prayed that interest should run from the date of the final decree, i.e. from the 22nd of January, 1919, and not from the date of the preliminary decree, i.e. from the 27 of June, 1918. We have read both the decrees. In the preliminary decree the mesne profits for six years were decreed and only the amount was not ascertained. That amount was subsequently ascertained and mentioned in the final decree to be Rs. 1,995 and odd. Both the parties are agreed that interest is payable on this sum, so it is clear that interest must run from the date on which the amount was decreed and not from the date on which it was ascertained. We hold that interest was rightly calculated from the date of the preliminary decree.

(3.) The decree was actually passed for recovery of mesne profits from Sri Ganeshji Maharaj. As pointed out by the learned Judge of the lower court, when such a decree is passed, it is recoverable from endowed property, as held by the Calcutta High Court in Pramada Nath Ray V/s. Poorna Chandra Ray (1908) I.L.R. 35 Calc. 691. The ruling of the Privy Council in Prosunno Kumari Debya V/s. Golab Ghand Baboo (1875) L.R. 2 I.A. 145 was given on different facts. There the decree, was passed against the Sebait (Manager) of the temple personally and against the profits of the temple. Even there, their Lordships held that the term Sebait meant the successive managers of the temple,-and not only the person who happened to be the manager at the time of the suit. In the present case, there is a definite decree against the temple. The learned Counsel for the appellant drew our attention to the plaint in which it was pleaded that Shiam, Lal was really the owner of the one-third share in the house and Sri Ganeshji was merely a fiction. This allegation, however, was not admitted by Shiam Lal and he asserted that the property was really owned by the idol. It was so held in the suit. When such was the finding, it cannot be said that the plaintiff desired to recover the mesne profits from Shiam Lal and not from the idol. In the relief claimed by him he specifically desired relief both against the idol and against Shiam Lal. Execution was rightly ordered by the lower court against the idol.