PANDIT PARBHU DAYAL Vs. SHEIKH ALI AHMAD

JUDGEMENT

(1.) This appeal arises in a suit for redemption of a mortgage, dated the 5 of February 1863, executed by one Ram Bakhsh in favour of one Debi Das, in respect of a 10 biswas share of the village Lodhamai. The mortgage was usufructuary and it was provided in it that the profits were to be appropriated in lieu of interest, except a sum of Rs. 100 per annum which was to be paid to the mortgagor. There were other provisions in the mortgage which for the purposes of this appeal it is unnecessary to refer to. In 1866 Ram Bakhsh sold 7 biswas out of the 10 biswas, that is, his equity of redemption in the 7 biswas, to Abdul Rashid, Abdul Aziz and Mahmud Khan, defendants, sons of Zahur Ahmad Khan. In 1871 Zahur Ahmad Khan purchased at auction 2 biswas 19 biswansis and 10 kachwansis out of the remainder of the mortgaged property. The remaining 10 kachwansis was purchased by Debi Das, who thus broke up the integrity of the mortgage. Zahur Ahmad Khan died in 1873 leaving him surviving the three sons above-mentioned, five daughters and two widows. In 1877 the three sons under the guardian ship of their mother, brought a suit for redemption of the mortgage of 1863 against Debi Das. On the 25 of May, 1878, the suit was decreed by the Court of first instance, the decree providing that the plaintiffs should pay to the mortgagee Rs. 6,967-1- 4. On the 17 of July, 1878, the plaintiffs to that suit obtained possession of the mortgaged property in execution of that decree. Debi Das preferred an appeal to this Court and on the 2nd of June, 1879, this Court held that the mortgagee was entitled to a further sum amounting to nearly Rs. 9,000 and varied the decree of the Court below by directing payment of the above sum in addition to the amount which the decree of the Court of first instance had ordered the plaintiffs to pay. The additional sum so awarded was not paid by the plaintiffs and the result was that the decree became infructuous. Debi Das thereupon applied for and resumed possession on the 1 of April 1880, He then asked the Court to grant him mesne profits for the period during which he was out of possession by reason of the plaintiffs having executed the decree obtained by them from the Court of first instance. On the 13 of March, 1881, the Court awarded to him Rs. 5,615-14-10 as mesne profits. For the realization of this amount Debi Das caused the equity of redemption of the plaintiffs to that suit to be sold by auction on the 20 of August, 1881, and himself purchased it. In 1886 he mortgaged the 10 biswas to Sagar Mal and Jumna Das who obtained a decree on their mortgage and caused 9 biswas 19 biswansis and 10 kachwansis to be sold by auction. This was purchased by Dilsukh Rai and Ali Ahmad, defendants first party. On the 7 of December 1901 the three sons of Zahur Ahmad Khan sold 4 biswas of the property to the present plaintiff Prabhu Dayal. In 1902 Prabhu Dayal, his vendors, namely, the three sons of Zahur Ahmad Khan and the daughters of Zahur Ahmad Khan brought a suit to redeem the mortgage of 1863. That suit was dismissed by this Court in 1905 on the ground among others that the heirs of Debi Das had not been joined as parties to the suit. On the 7 of September 1905 Abdul Rashid, Abdul Aziz and Mahmud Khan sold to Prabhu Dayal a further 1 biswa share and on the 16 of January 1905, Parbhu Dayal instituted the suit out of which this appeal has arisen for redemption of the mortgage of 1863.

(2.) The Court below has dismissed the suit on the ground that the equity of redemption of the mortgagors had validly passed to the mortgagee Debi Das under the auction sale which took place in 1881 and that, therefore, the plaintiff acquired no right under his purchase to redeem the mortgage.

(3.) The plaintiff has preferred this appeal. It is not denied that if the equity of redemption was acquired by the mortgagee the plaintiff's suit must fail but It is urged by the learned Advocate for the appellant that the Court had no jurisdiction to award mesne profits, that the auction sale held in 1881 for the realisation of the mesne profits so awarded was a nullity and that the equity of redemption of the plaintiff's vendors did not pass to the mortgagee Debi Das. This contention is based on the argument that the decree of the High Court varying that of the Court below did not direct the award of mesne profits. Reliance is placed on the terms of Section 583 of the Civil P. C., 1882. We are unable to accede to the contention of the learned Advocate. In our opinion a decree of reversal by an appellate Court contains by necessary implication a direction to the Court below to cause restitution to be made of all the benefits of which the successful party in the appeal was deprived by the enforcement of the erroneous decree of the Court of first instance. As observed by Sir Barnes Peacock, C.J., in Hurro Chunder Roy Chowdhry V/s. Shooradhonee Debia 9 W.R. 402; B.L.R. Sup. Vol. 985 "It is the legal effect of a decree of reversal that the party against whom the decree was given is to have restitution of all that he has been deprived of under it. A Court of Appeal does not necessarily enter into the question whether a decree it is about to reverse has been executed or not." A similar view was held by the Madras High Court in Dorasami Ayyar V/s. Annasami Ayyar 23 M. 306 and by this High Court in The Collector of Meerut V/s. Kalka Prasad 28 A. 665; A.W.N. 1906 171; 3 A.L.J. 665. The absence of specific direction in the decree of the High Court for payment of mesne profits did not deprive the Court which made the order of the 31 of March, 1881, of its jurisdiction to award mesne profits by way of restitution. It is clear that the Court which could enforce the liability of the defeated plaintiffs to make restitution was the Court of first instance. That Court had jurisdiction not only to restore to the mortgagee the possession which he had lost but all other benefits of which he had been deprived. As we have stated above, the decree of the High Court awarded to the mortgagee a further sum in addition to that awarded by the Court of first instance and the effect of the non-payment of this additional sum was that the suit stood dismissed. The mortgagee contended that under the terms of the mort gage he had the right to continue in possession and to receive the rents and profits so long as any amount remained due to him under the mortgage and was, therefore, entitled to the rents and profits which he did not obtain during the period of his dispossession. The only Court which could determine the question thus raised and had jurisdiction to decide that question was the Court of the Subordinate Judge. It had jurisdiction to decree whether mesne profits should or should not be awarded. Whether its decision was correct or erroneous is immaterial as the Court had jurisdiction to decide rightly and to decide wrongly. Even if it be assumed that it erred in awarding mesne profits, it cannot be said that it acted without jurisdiction. Dr. Satish Chander Banerji, the learned Advocate for the appellant, strenuously relied on the ruling of their Lordships of the Privy Council in Kalka Singh V/s. Paras Ram 22 C. 434; 22 I.A. 68. That ruling is in our judgment wholly inapplicable to the present case. There a Court had made a decree for possession but not for mesne profits. The Court executing the decree in spite of the absence of a direction in the decree itself as to the payment of mesne profits awarded such profits to the decree-holders and sold the judgment-debtor's property for the realisation thereof. It was held that the order of the Court executing the decree for the award of mesne profits was without jurisdiction. That is not the case here. As we have pointed out above the Court of first instance was competent to determine the question of restitution. It had, therefore, jurisdiction to award mesne profits by way of restitution and it cannot be rightly contended that in so awarding it, it acted without jurisdiction. We are, therefore, of opinion that the sale which took place in execution of the decree for mesne profits so far back as the year 1881 was a valid sale and conveyed to the purchaser the equity of redemption of the vendors of the plaintiff.