GANGA PRASAD DUTT Vs. RANI HEMANGINI DEBT, EXECUTRIX TO THE ESTATE OF LATE RAJA JOGENDRA NATH ROY BAHADUR

JUDGEMENT

(1.) This is an appeal preferred by the decree-holder against an order of the learned Officiating Subordinate Judge of Pabna, dated the 31st May 1913. The appellant, the decree-holder, brought a suit for recovery of possession of certain land and also for mesne profits. The decree was made as long ago as 1909. The first, what is called in this country the execution case, was in 1909 in which possession was given of the land. Then there was another execution case to realise the costs of the suit. Then came a series of applications to the Court for assessment and realisation of mesne profits, the last of which is the present application presented to the Court on the 25th March 1913. On this application coming on before the learned Officiating Subordinate Judge, he held that the application was not one made in execution of the decree but an application in the suit itself and that, the former applications having been dismissed for default of the decree-holder, the decree-holder had precluded himself from applying to the Court for assessment and realisation of the mesne profits. In the present appeal, various oases have been cited. On the one hand we have got the Full Bench decision in the case of Puran Chand v. Roy Radha Kishen 19 C. 132 : 9 Ind. Dec. (N.S.) 534, which seems to me to be obviously against the appellant. On the same side we have got the decision in the case of Upendra Chandra Singh v. Sakhi Chand 15 Ind. Gas. 709 : 16 C.L.J. 3, that is also clearly against the view put forward by the appellant. On the other side, we have got the decision in the case of Ram Kithore Ghose v. Gopi Kant Shaha 28 C. 242, which is opposed to the decision reported as Upendra Chandra Singh v. Sakhi Chand 15 Ind. Gas. 709 : 16 C.L.J. 3, That decision in Ram Kishore Ghose v. Gopi Kant Shaha 28 C. 242, was followed in a case in Upendra Chandra v. Sakhi Chand 7 C.L.J. 301 : 12 C.W.N. 3, But the learned Judge who presided over the Court in that case was the same Judge who presided over the Court that decided the case reported as Ram Kishore Ghose v. Gopi Kant Shaha 28 C. 242, The case in Ram Kishore Ghose v. Gopi Kant Shaha 28 C. 242, has received judicial notice on several occasions and, so far as I can see from the reports, it never received such notice with approval except in the case reported as Upendra Chandra v. Sakhi Chand 7 C.L.J. 301 : 12 C.W.N. 3, The case does not end there. The present Code is materially different from the old Code. Under the present Code, it cannot be suggested that mesne profits are assessed in what is called the execution department. Under the terms of Order XX, Rule 12, it is quite clear that mesne profits are assessed by an enquiry in the suit itself and the mesne profits so assessed form portion of the money recoverable under the decree. Whatever might be argued under the former Code, it seems to me, under the terms of the present Code, that there are no grounds for suggesting that mesne profits are assessed in what is called the execution department.

(2.) The last argument that was placed before us by the learned Vakil for the appellant was that the decree in this case stated that mesne profits would be ascertained in execution. It was in excess of the powers of the Court to suggest that mesne profits would be ascertained in any manner other than that prescribed by the law. The method in which mesne profits are ascertained under the present Code of the Civil Procedure is not by an enquiry in execution but by an application in the suit itself. I am of opinion that the learned Judge in this case came to a correct conclusion. The present appeal, therefore, fails and must be dismissed with costs. We assess the hearing fee at seventy five rupees. Richardson, J.

(3.) I agree. The provisions of the present Code on the subject are clear, and the inaccurate language used in the decrees before us must be construed in a sense conformable with those provisions. It may be worthwhile to add that the proper way or ways of drawing up a decree for possession and mesne profits is indicated in Mulla s Edition of Civil Procedure Code in the notes to Rule 12 of Order XX.