RAGHUBIR SINGH Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is a Letters Patent Appeal against an order of a learned single Judge of this Court in an appeal from an order arising out of an execution proceeding. The appellant sustained injuries in an accident. He was a lorry driver and his lorry collided with a train at a level crossing. The respondent are a Railway Company and the amount of damages claimed by the appellant was Rs. 7000. The learned Judge who tried the case held that the Railway Company were liable in damages. He found that up to date the amount of damages suffered by the appellant was Rs. 932. The learned Judge however did not decide the question of possible future damage. The learned Judge formed the opinion upon the evidence that in all probability the plaintiff's physical condition would have suffered permanent deterioration as a result of the injuries sustained by him in the accident. He was of the view however that he was not able, on the information before him, to decide the full amount of damages to which the plaintiff was entitled until the lapse of a certain time when it would be possible more accurately to determine the permanent effects of the injuries sustained. He accordingly granted a decree for the sum of Rs. 932 and left the question of any further damages to be decided by the execution Court. His order ran: I decree the claim for Rs. 932 with proportionate costs minus defendant's costs in proportion to the claim dismissed and provide that the defendant would be liable to pay such further damages with costs as the plaintiff may prove in the execution department as suffered after December 1930, owing to his suffering caused by the accident concerned. The rest of the claim is dismissed.

(2.) The appellant made an application in the execution Court for the execution of this decree and the learned Civil Judge held that the respondents were liable to pay a further sum of Rs. 382-8-0 in the name of damages to the appellant. On appeal to this Court the learned single Judge has set aside the order of the learned Civil Judge and has dismissed the application for execution. The learned Judge took the view that the execution Court had no jurisdiction to execute such a decree as had been passed by the trial Court. Learned Counsel for the appellant contended that once a decree had been passed by the trial Court it was the duty of the execution Court to give effect thereto and that the execution Court was not entitled to go behind the decree or refuse to execute it on the ground that the trial Court had no jurisdiction to pass it. In support of this contention he referred to three cases, Ananda Kumar V/s. Sheikh Madan , Lakshmibai Anant V/s. Ravji Bhikji (1929) 16 A.I.R. Bom. 217 and Kemgam Swamy V/s. Subbamma (1930) 17 A.I.R. Mad. 30. These were cases in which the claims were for mesne profits. Now, under the provisions of the Civil Procedure Code it is for the Court trying the suit to decide the amount of mesne profits. In the cases cited above, however, the Court left the decision of the question of future mesne profits to the execution Court. It was held in these cases that this procedure amounted only to an irregularity; that the decree directing the execution Court to fix the amount of future mesne profits was not a nullity and that it was the duty of the execution Court to decide the question and to award mesne profits.

(3.) The decisions in these three cases may or may not be sound. We are, however, with, respect disinclined to follow them. The Legislature has made provision in the Civil P. C. for the determination of the amount of mesne profits in a suit for possession and mesne profits. The assessment of the amount of mesne profits is a duty which is east upon the trial Court and it would appear to us that the trial Court has no power to transfer that duty to the execution Court. We are inclined to the view that the order of a trial Court directing the execution Court to assess mesne profits is an order without jurisdiction and should be treated as nullity. It is to be noted further in this connexion that special provision is made in regard to suits for possession and mesne profits for the passing of a preliminary and a final decree. These cases, however, are to be clearly distinguished from the case such as the present, where the claim is one for damages in respect of personal injuries. The Code of Civil Procedure makes no provision for the passing of a preliminary and a final decree in such a case. Order 20 makes provision for the passing of preliminary and final decree in the case of suits for possession and mesne profits; administration suits; pre-emption suits; suits for dissolution of partnership; suits for accounting between principal and agent, and suits for partition. There is no provision in Order 20 for the passing of a preliminary decree in a suit for damages in respect of personal injuries or in respect of breach of contract.