DEBI PRASAD Vs. NARSINGH DAS

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. The original suit was one for redemption, the plaintiffs alleging that they were entitled to possession of the property which had been mortgaged and mesne profits on the ground that the mortgage had been discharged by the usufruct, and a surplus was due to the mortgagor. THIS suit resulted in a decree for possession and a direction for an inquiry as to what amount of mesne profits the plaintiffs were entitled to. The matter had been litigated up to the High Court and its decree was dated the 2nd of November, 1904. In pursuance of the decree directing the inquiry as to mesne profits an application was made for that purpose in the year 1907, and the mesne profits were finally adjudicated upon in the year 1910. The decree was then put into execution and various sums were realized from time to time. The present application for execution was made on the 18th of April, 1917. The application was met with various objections. The objection insisted upon in this Court is that the decree which must be deemed as now executed is the decree of the High Court of 1904, and that accordingly its execution is barred either by the provisions of Section 230 of the Code of Civil Procedure of 1882, or by Section 48 of the present Code. These two sections appear to be almost identical, with one exception, namely, that Section 230 of the Code of 1882, speaks only of a decree for "payment of money" whilst the present Code speaks of decrees generally, except as therein provided: The words of the present Code are "where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed." The argument put forward is that the date of the present decree was the 2nd of November, 1904. If this contention be correct the application was undoubtedly time-barred and could not be granted. The matter is not now of any very general importance because in future all decrees for mesne profits in a suit for recovery of immovable property must be made by the court which grants the decree for possession of the property (the rules provide for the making of a "preliminary" and a "final" decree). The contention put forward on behalf of the respondents is that the court having directed an inquiry as to mesne profits there was no Complete, or (to adopt an expression used by their Lordships of the Privy Council) there was no "operative" decree until the mesne profits were ascertained in the year 1910. THIS very point was considered by a Bench of this Court in the case of Mohammad Umarjan Khan v. Zinat Begam ((1903) I. L. R. 25 All, 385.). The learned Judges in that case referred to the judgement of their Lordships of the Privy Council in Radha Prasad Singh v. Lal Sahab Bai ((1890) I. L. R. 18 All 53.) and also to a Full Bench decision of the Calcutta High Court. We think that we ought to follow this case, which is in accordance with the practice which has been adopted by the new Code of Civil Procedure and which, moreover, seems to be in accordance with justice. Applying the principle laid down in these cases to the present case, it must be deemed that the "date" of the decree, so far as it related to mesne profits, is the 15th of February, 1910, when the mesne profits were for the first time ascertained. Since that date there have been numerous applications for execution which have saved limitation and made the present application within time. On the general merits we have heard the parties and see no reason to differ from the view taken by the court below. We dismiss the appeal with costs.