NANDKISHORE LALL Vs. CHANDRIKA PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by one of the judgment-debtors whose objection to execution of a decree has been dismissed by the Subordinate Judge of Monghyr. It appears that in 1927 Ram Sekhar Prasad Singh and certain other persons brought a suit for recovery of possession of certain lands and mesne profits. The suit was decreed and the plaintiffs applied for the ascertainment of the mesne profits. While the enquiry relating to the mesne profits was proceeding the plaintiffs assigned the decree for mesne profits to the respondent Chandrika Prasad with the result that ultimately when the amount of mesne profits was ascertained, a decree was passed in favour of Chandrika Prasad. He has now applied for the execution of the decree, but his application is resisted by the appellant on the ground that he is a benamidar for some of the judgment-debtors and therefore the decree cannot be executed against him under Proviso 2 to Order 21, Rule 16 which lays down that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others. The question whether Chandrika Prasad is or is not a benamidar for some of the judgment-debtors was enquired into by the Subordinate Judge (Court below) and he has, upon a consideration of the evidence adduced before him, come to the conclusion that the appellant, judgment-debtor has failed to establish that Chandrika Prasad is a benamidar. The learned advocate for the appellant contends in this Court that the learned Subordinate Judge has come to a wrong decision and that the only conclusion, which can be drawn from the evidence which has been adduced by the parties, is that Chandrika Prasad was a benamidar on behalf of some of the judgment-debtors.

(2.) In my opinion however that question does not legitimately arise in these proceedings. The objection which has been preferred by the appellant in the Court below purports to be an objection under Proviso 2 to Order 21, Rule 16 and for the purpose of establishing it, it is necessary for the appellant to show firstly that the decree which was transferred to the respondent was a money decree and secondly, that the transfer took place after the decree now sought to be executed had been passed. It may be pointed out that what was transferred in this case was not a decree for an ascertained sum of money but the preliminary decree for mesne profits.

(3.) The learned advocate for the appellant, contends upon the authority in Viraragava Ayyangar V/s. Varada Ayyangar (1882) 5 Mad. 123 that a decree for mesne profits, even though the mesne profits may not have been ascertained, is a decree for money. That case however was decided under the old Civil Procedure Code under which after a decree for mesne profits was passed, the decree, holder had to go to the execution department and apply for the ascertainment of the mesne profits. Under the new Code however the proceeding taken for ascertainment of mesne profits is a continuation of the suit and under Order 20, Rule 12 after the inquiry is concluded, a final decree has to be passed in accordance with the result of such inquiry. There can be no doubt that under the present Code the final decree will be a money decree, but I am doubtful if the decree for mesne profits before the amount is ascertained can, strictly speaking, be regarded a money decree. Such a decree cannot be executed until it is made final and one may at least conceive of a case, though such a case will be rare, where the result of the inquiry under Order 20, Rule 12 may disclose that nothing is recoverable as mesne profits.