SARAJ RANJAN CHOWDHURY Vs. PREM CHAND CHOWDHURY

JUDGEMENT

(1.) This is an appeal under the Letters Patent in respect of an appeal in which Mr. Justice Doss and my learned brother Mr. Justice Richardson differed in opinion.

(2.) The judgments were delivered so long ago as June 1909. Both the judgments were read by Mr. Justice Richardson, because, as we have been informed, on that date Mr. Justice Doss was away on leave; and apparently some doubt arose as to whether the judgment of Mr. Justice Doss was a valid judgment, having regard to the fact that that was read by my learned brother Mr. Justice Richardson when Mr. Justice Doss was away from Court on leave, and apparently this matter was left in abeyance for many years. It was brought before my learned brother Mr. Justice Mookerjee and me last year, and it was argued on the one hand that Mr. Justice Doss s judgment was a valid judgment, and on the other that it was not a valid judgment. We came to the conclusion that it was a valid judgment and consequently the appellant would have had a right of appeal under the Letters Patent if he had appealed within the proper time, and having regard to the special facts that were stated to us at that time, that the time for appealing should be extended and we did extend it. The result was that this appeal was presented to Court and it has now been heard by us. I think it was necessary to state those facts and to show how this very considerable delay in this case has arisen.

(3.) Now, the suit in which this appeal arises was a suit brought by the plaintiffs for mesne profits in respect of the Amli years 1309, 1310, 1311 and 1312. I might say at this stage that the claim in respect of the earlier half of the year 1309 was given up by the plaintiffs at some stage of the proceedings. The learned Subordinate Judge decreed the suit, and declared that the plaintiffs were entitled to get mesne profits from the last six months of 1309 to 1312, and that a Commissioner should be appointed to take accounts from the papers filed by the plaintiffs and from other necessary papers and that the amount paid by the auction-purchaser on account of the 1311 rent and the costs of realisation should be set off against the money due to the plaintiffs and that the case should be brought up again before him after the Commissioner s report had been received. From that decision the defendant No. 1 appealed. That was the appeal which was heard by Mr. Justice Doss and my learned brother Mr. Justice Richardson. The point which arose upon the appeal was as to the Limitation Act. The defendants contended that the plaintiffs were not entitled to recover any mesne profits, except those which were received or which ought to have been received without wilful default, within three years prior to the institution of the suit.