Bhatu Ram Modi and Another vs Fogal Ram

Das, J.—On 25th August 1915 the Ramgarh Raj obtained a decree for possession of certain properties, for mesne profits up to the date of the decree "at the rate of the rent fixed in the lease with interest thereon at the rate specified in the said lease" and for subsequent profits "at the full rate recoverable under the law." The Ramgarh Raj obtained possession of the properties on the 22nd February 1916 and it therefore became entitled to mesne profits at the rate of rent up to 25th August 1915 and at the full rate from 25th August 1915 to 22nd February 1916.

On 23rd December 1915 the Raj presented an application for execution claiming Rs. 2,866-14-0 as mesne profits for 11 years up to the date of the decree and Rs. 1,069-11-9 as mesne profits from the date of the decree up to 23rd December 1915. The application was presented as a simple application for execution of the decree, the Raj and its legal advisers having overlooked the facts that under the CPC of 1908 ascertainment of mesne profits was a proceeding in the suit itself. Certain proceedings were taken and certain properties of the judgment-debtors were sold in this execution; but an objection having been taken the sale was set aside on the 8th December 1917 and the decree-holder was directed to file fresh execution. On 13th August 1919 another execution case was started by the Raj. On 11th November 1919 this was rejected as infructuous, because certain substitutions had not been effected. On 7th March 1920 the third execution case was started. The judgment-debtors now for the first time raised the objection that mesne profits could not be ascertained in execution and that there was no application for ascertainment of mesne profits and that the application for execution could not be converted into an application for ascertainment of mesne profits. On 17th April 1910 the Court dismissed this application as barred by limitation. The Court also held that the proceedings could not continue, as mesne profits had not been ascertained which must be ascertained in a proceeding in the suit itself. The decision of the Court on the question of limitation was subsequently set aside by that Court on review and that decision was upheld by this Court. Having regard to this decision Fogal Ram, who meanwhile had purchased the decree from the Raj, instituted the present proceedings on 29th April 1920 for the ascertainment of mesne profits. His application has succeeded and the judgment-debtors appeal to this Court and they contend that having regard to the previous orders, namely, those passed on 8th December 1917, 11th November 1919 and 17th April 1920, the present application was not maintainable. The matter was heard before my learned brother and myself on 5th May 1925 when we delivered judgment agreeing with the contention of the appellants. Mr. B.C. De thereafter appeared before us before we had signed the judgment and he asked for permission to argue the matters again before us. We acceded to the request and we have heard the parties fully today. In my opinion, having regard to the argument which have been advanced before us today, we must affirm the decision of the lower Court and dismiss this appeal.

The short point which falls to be considered is whether there is any power in a Court to dismiss an application for ascertainment of mesne profits. It is contended before us by Mr. Susil Madhab Mullick that a decree having been passed for ascertainment of mesne profits it was not competent to the Court at any stage to dismiss those proceedings, it being beyond the power of a Court to dismiss a claim which had already been decreed; and it was contended that if the previous applications be regarded as applications for the ascertainment of mesne profits, then the dismissal of those applications were from one point of view illegal and that in any case they could not prevent the decree-holder from inviting the Court to carry into effect the decree of the High Court dated 25th August 1915. This view is supported by the decision of the Judicial Committee in Lachmi Narain Marwari v. Balmakund Marwari AIR 1924 PC 198. That decision was pronounced in a suit for partition. A preliminary decree for partition was made and all that remained to be done was to carry the partition into effect. The Subordinate Judge accordingly fixed a date for hearing the parties as to how the partition was to be effected and give them notice, but the plaintiff did not appear on the date fixed and thereupon the Subordinate Judge dismissed the suit for want of further proceedings. With reference to what was done by the Subordinate Judge, their Lordships said as follows; "After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree, acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. After a decree any party can apply to have it enforced;" and then their Lordships said this: "If for instance, the Subordinate Judge has made an order adjourning the proceedings sine die, with liberty to the plaintiff to restore the suit to the list on payment of all costs and court-fees thrown away, it would have been a perfectly proper order."

Now it seems to me that this case decides the present controversy between the parties. The decree of 25th August 1915 in terms gave a decree to the plaintiff for mesne profits. There was therefore, a valid decree which was operative and which the Court had to carry into effect. That decree was not set aside and it seems to me that the proceedings for the ascertainment of mesne profits could not be dismissed, for the dismissal of those proceedings would operate as a dismissal of the suit which had already been decreed by the Calcutta High Court.

The question only arises as it is contended before us that although in form the previous applications may have been applications for execution of the decree, in substance they were applications for ascertainment of mesne profits. I hold that if they were applications for the ascertainment of mesne profits, their dismissal was ultra vires and that it was open to the plaintiff to ask the Court to ascertain the mesne profits. It is well established that an application for mesne profits is an application in the suit itself and that the law of limitation has no application to it so long as the suit is a pending suit.

Mr. Sultan Ahmed ingeniously argued before us that a distinction should be drawn between a suit and a claim which may be involved in the suit. He admits that the suit having been decreed it was not in the power of the learned Subordinate Judge to dismiss the suit; but he contended before us that the claim for mesne profits stood on a different footing. I am unable to agree with this contention. The only part of the suit that remained was that dealing with the question of mesne profits payable to the plaintiff; and in any view the claim for mesne profits had in distinct terms been decreed by the Calcutta High Court, and that being so, that claim could not be dismissed by the learned Subordinate Judge.

I would accordingly dismiss this appeal. There will be no order as to costs.

It was brought to our notice that the lease does not provide for the payment of any interest. That being so, the plaintiff will be only entitled to mesne profits at the rate of rent fixed in the lease up to the date of the decree.

Adami, J.

I agree.