GOKUL KALWAR Vs. CHANDAR SEKHAR

JUDGEMENT

(1.) This appeal is directed against a preliminary decree passed in the Court of the Subordinate Judge of Gorakhpur in a suit for redemption. The plaint is dated the 15 of September, 1916 and the suit was suit No. 7 of 1917. It seems that the suit was dismissed originally in the Court of first instance. There was an appeal to this Court and the case was sent back for disposal on the merits, and finally the Subordinate Judge gave judgment on the 5 of October 1922 allowing redemption. In framing their suit for redemption the plaintiffs-mortgagors asked for mesne profits for two periods: (1) from the date of a certain deposit which they had made in Court under Section 83 of the Transfer of Property Act till the date of the suit; and (2) from the date of the suit till the date of delivery of possession.

(2.) The Subordinate Judge was of opinion that the plaintiffs were not entitled to mesne profits for the first period and he based his decision on the ground that the deposit which the plaintiffs bad made was not a proper deposit. At the time that deposit was made one of the mortgagees was a minor and when the plaintiffs lodged the money in Court there was no properly constituted guardian ad item of this mortgagee-defendant. The learned Subordinate Judge, therefore held that this was not a good deposit so as to stop the running of interests and he relied for his decision upon a judgment of this Court in Kannu Mal V/s. Inderpal Singh AIR 1922 All 147. That case afterwards came up before a Bench in Letters Patent AIR 1923 All 183, in which the law was affirmed as followed by the learned Subordinate Judge. It must be taken, therefore, that there was before the date on which the suit was brought, no valid deposit of the mortgage money under Section 83 of the Transfer of Property Act. So far therefore, the learned Subordinate Judge was right in refusing the claim of the plaintiffs to mesne profits for the period between the date of this deposit and the date on which the suit was brought.

(3.) We are however, unable to understand why after coming to this finding the learned Subordinate Judge allowed mesne profits to the plaintiffs from the date of the suit till the date of delivery of possession. The judgment of the Subordinate Judge was delivered on the 5 of October 1922. and by the decree which was prepared on the 13 of October 1922, the defendants mortgagees were ordered to vacate possession in favour of the plaintiffs on or before the 5 of March 1923. As a matter of fact the plaintiffs got possession either on the 26 or 28 of October, 1922. The question is whether the Subordinate Judge was justified in this preliminary decree in giving a direction that the plaintiffs should receive mesne profits from the date of the suit till the date of delivery of possession. If the defendants-mortgagees could not be said to have had wrongful possession during this latter period they were certainly not liable to pay mesne profits to the plaintiffs.