KALKA SINGH Vs. PARASRAM

JUDGEMENT

(1.) IT is not necessary to state the details of the earlier litigation out of which the present case has arisen. Suffice it to say that prior to and in the month of April, 1877, Kalka Singh and Chet Singh, the present Appellants, held a decree dated the 10th of October, 1866, for a recovery of a seven annas share of the Baniamau taluq, the remaining shares being held by Deli Singh and Daryao Singh in certain proportions. The decree of the 10th of October, 1866, did not contain any order or direction for payment of mesne profits.

(2.) THE present Appellants, however, made an application in their suit for payment to them of mesne profits accrued during the time they were out of possession after the decree of the 10th of October, 1866. On the 3rd of April, 1877, the Deputy Commissioner made an order in assumed execution of the decree giving the decree-holders mesne profits. This order is said to have been affirmed by the Commissioner, and it is said that the Judicial Commissioner rejected a second appeal as inadmissible. The order of the 3rd of April, 1877, was not proceeded with for some reason; and on the 10th of August, 1883, an application to proceed upon it was dismissed by the District Judge on the ground that there was no decree giving mesne profits to the Applicants, and that decision was affirmed by the Judicial Commissioner on the 15th of February, 1884. Mr. Arathoon contended that the decision of the District Judge and Judicial Commissioner was beyond their jurisdiction and ought to be disregarded, on the technical ground that they were bound by the order of the 3rd of April, 1877. Their Lordships, however, cannot take this view. It is not disputed that the Court executing the decree of the 10th of October, 1866, had in fact no power to award mesne profits not mentioned in that decree, and their Lordships agree with the Judicial Commissioner that the order of the 3rd of April, 1877, was no decree and was made without jurisdiction, and the application to the District Judge was therefore properly dismissed.

(3.) THE operative part of the bond of the 23rd of August, 1879, which is now in suit, is as follows: Whereas Rs. 5500 on account of bonds, dated 1st February, 1875, and 11th December, 1877, are due from me to Salig Ram, son of Mithu Lal, Kanungo, resident and zemindar of Sikandarpur, District Shahjahanpur, at present residing in Narainpur, District Sitapur, and we have borrowed Rs. 1500 in cash from the said Lola, the first condition is this that Rs. 5000 we shall pay without interest on the 15th of the month of Magh, 1287 Fasli, and Rs. 2000 we shall pay at the time of realization of mesne profits, for which a decree has already been passed in favour of us, the declarants, and in execution of which decree the property of Debi Singh and Daryao Singh, judgment debtors, has been attached.