Arumuga Irungalar vs Packiri Vellala Thevar and Others

Walsh, J.—The plaintiffs filed a suit against defendant 1 for recovery of possession of certain property and for mesne profits. During the

pendency of the suit they tiled a petition for the appointment of a receiver to harvest the crops on the land. Respondents 7 and 8 gave security to

the extent of a maximum of Rs. 550 with regard to these crops. The suit was dismissed but in appeal was decreed. The petitioner (appellant) put in

a petition to execute the security bond. The sureties contended: (1) that the bond was only intended to cover any decree that might be passed by

the trial Court; (2) that even if it is operative the appellate decree is not capable of execution. The Court of first instance found both points in the

petititioner''s favour. The lower appellate Court found both points against the petitioner and he prefers this second appeal.

Point No. 1. - The material portion of the security bond runs as follows:

On the petition presented by the plaintiff in this suit for the appointment of a receiver the Court passed order on 16th January 1921 directing the

defendants to furnish security for RS. 550 in respect of the mesne profits of the plots in dispute for the current year. If in accordance therewith

decree is passed in this suit in favour of the plaintiffs and the defendants have to pay mesne profits for the current year the defendants shall pay that

amount to the plaintiffs; then follows the charge

D.S.S. Subbarama Iyyar Vs. Somalinga Subba Ayyar and Another, is directly in point that such a bond becomes vacated on the suit being

dismissed by the trial Court. The samel view has also been taken in Manackjee v. B.M.L. Chettiar Firm AIR 1927 Rang though the Bombay High

Court appears to take a different view in Irangauda Shidramgauda Patil Vs. Irbasappa Gangappa Dalal and Others, . The Privy Council case in

Baj Baghubar Singh v. Jai Indra Bahadur Singh AIR 1919 PC 55 was considered in D.S.S. Subbarama Iyyar Vs. Somalinga Subba Ayyar and

Another, , and distinguished on the terms of the actual bond there. It was also considered in a Full Bench case of this Court in Balaraju Chettiar

Vs. Masilamani Pillai and Others, (of 53 Mad.), in which I delivered the judgment. I have nothing to add to the remarks made in D.S.S.

Subbarama Iyyar Vs. Somalinga Subba Ayyar and Another, , or to-those which I made in the Pull Bench case. In an earlier case of this Court

reported in O. Venkatasubba Bao v. C. Bosayya AIR 1915 Mad 653, where the terms of the bond were even wider than in the present case, it

was held that where sureties offered themselves to the Court of first instance to release property from attachment before judgment and the suit was

dismissed, the bond became thereby discharged. This was approved and followed in Subbarama Iyer v. Subbier (1), quoted above. Whether or

not Irangauda Shidram Gowda v. Irbasappa (3) can be distinguished from the present case, the view of this Court is clear. I am bound to follow it.

If the receiver had taken charge of the property the defendants would have been, on the dismissal of the suit, at liberty to take away the crops

unless an order continuing the attachment had been received from the appellate Court. In the Full Bench case referred to above we held that

attachment before judgment comes to an end automatically with the dismissal of the suit, even if the Court passes no formal order terminating it. It

is difficult to see why the plaintiff should be in a better position merely from the fact that he prefers an appeal. on the first point, therefore, I agrea

with the learned District Judge and it is sufficient for the disposal of this appeal. I may, however, perhaps say that I agree with him on the second

question also which is somewhat more difficult. In the suit no claim was made for past mesne profits the point being expressly reserved. As regards

mesne profits after suit an issue was raised. No. 3, To what mesne profits are the plaintiffs entitled?"" The suit in the trial Court went off on the

question of the title which was found against plaintiffs. In the appellate Court title was found in their favour but there was no finding about mesne

profits The only allusion to it in the judgment is found in the sentence in Ex. D there will be a decree for possession with future mesne profits as

prayed for with costs in both Courts.

The plaint no doubt had prayed for future mesne profits, and for the appellants, great stress is laid on the words in the judgment ""as prayed for.

It is also argued that the executing Court cannot go behind the decree ; that is of course true but it is alleged that if the decree is not executable the

executing Court cannot help going into that question. We are here only concerned as to how far the decree is in its present state executable against

the securities It is quite clear that the mesne profits asked for have never been determined though there was an express issue as to their quantum in

the suit. The liability of the sureties depends on what these mesne profits turn out to be and it is difficult to see how it can be enforced till this is

known. The execution of the decree in its present state against them seems at least premature. I am, therefore, inclined to agree with the view of

the learned District Judge on this point also, but the appeal must fail on the first point in any case. It i3 dismissed with costs.