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Judgment
Krishna Saran Shrivastav, J.—This order shall also dispose of the CRP No. 3644/1989 because this revision also arises out of the common impugned order.
Facts first: Late Pullanna and late Bazari were brothers and late Sanjamma, the judgment debtor No. 6 was their elder sister. The respondents are the legal representatives of the deceased Pullanna while the petitioners-judgment debtors are the legal heirs of the deceased Bazari. The respondents filed O.S. No. 54/78 for partition and separate possession of the suit property, claiming half share in the same against the petitioners and the deceased Sanjamma, alleging that the other half share belongs to the heirs of the deceased Bazari, that is to say the petitioners. The trial Court on 10-11-1980 passed a preliminary decree in respect of the plaint schedule property, except Item No. 5. The preliminary decree reads as under:
"1. That the plaintiffs be entitled for partition and separate possession of their half share in the plaint A schedule properties except Item No. 5 of the A schedule.
That the plaintiffs be also entitled for half share in the share in the cash of Rs. 5,420/- two silver waist belts and two silver anklets seized by the Commissioner during inventory.
That future mesne profits shall be determined by way of separate Application under Order 20 Rule 12 C.P.C
That the defendants to pay the plaintiffs a sum of Rs. 575/- being the proportionate costs of the suit and to bear their own costs i.e., D-l to D-5 Rs. 1,002/- and D-6 Rs. 1,505/-.
That the rest of the suit claim be dismissed and that each party do bear its own costs of the suit in respect of the claim dismissed."
On the application of the respondents, the trial Court appointed a Commissioner for partitioning the plaint schedule property, except Item No. 5 and passed final decree on 4-3-1982 in I.A. No. l47/1981. in O. S. No. 54/1978. The final decree reads as under:
"1. That Item No. 7 old house door No. 4/53; Part 2 in Item No. l Part-1 in Item No. 2; Part II, II-A and II-I3 in Item No. 3; Part I in Item No. 4; Part I in Item No. 6 and Part I in Item No. 9 of the Commissioner''s plans and report shall fall to the share of the petitioners, and the rest of the parts in the aforesaid items as shown in Commissioner''s plans shall fall to the share of the respondents.
In lieu of Item No. 3; the petitioners shall pay Rs. 735/- to the respondents.
That the petitioners shall be entitled for half share in Rs. 5,420/- being the cost of the two silver waist belts and two silver anklets seized by the Commissioner;
That the petitioners shall be entitled for Rs. 2,500/- being the half of the total mesne-profits of Rs. 5,000/- arrived at by the Commissioner;
That there be no order as to costs;
That the plans and report of the Commissioner shall be read as part and parcel of the decree;"
(A and B Schedules are not relevant for the purposes of deciding these revision petitions).
It is an admitted fact that the judgment-debtor, that is Sanjamma/ died during the pendency of the final decree proceedings and the 1st petitioner is her legatee and, therefore, has inherited the properties left by her.
During the execution of the decree, that is E.P. 156/83, the petitioners filed an objection u/s 47 of the CPC which was registered as E.A. 340/86. They also filed another objection u/s 47 of the CPC which was registered as E.A. 421/86.
In E.A. 340/86 the petitioners alleged that the mesne profits have been assessed at the rate of Rs. 2,500/- per year from the year 1975 to 1981, but it was amended at the instance of the respondents and past mesne profits were also added in it in the final decree. Later, the respondents filed the execution of the final decree. The final decree to the extent of past mesne profits is not executable because the preliminary decree is silent regarding the right of the respondents to claim past mesne profits. The deceased-judgment debtor No .6 was in possession and management of the suit property and, therefore, the petitioners are not liable to pay the same to the respondents, particularly because the decree is silent and it is only a declaratory decree.
The respondents denied the allegations made by the petitioners and alleged that the decree is executable and it is not merely a declaratory decree, and the petitioners are liable to pay the mesne profits as claimed by them.
In E. A. No. 421 /86, the petitioners alleged that the past mesne profits have been wrongly shown as claimable by the respondents. They should have valued the mesne profits for the purposes of Court fees and should have paid the Court fees on the same. The valuation of the property attached has not been correctly shown in the sale proclamation. The thrashing floor is not liable to be attached or sold. The attached property is not liable to be sold.
The allegations made in this petition have also been denied by the respondents.
The executing Court disposed of both the objections by common order dated 21-7-1989. It found that the past mesne profits cannot be claimed by the respondents because the same is not in accordance with the preliminary decree. It also found that the Item No. 5, that is to say the thrashing floor, is not liable to be attached or sold in execution of the decree vide Section 60 of the Code of Civil Procedure. The executing Court rejected the objection of the petitioners that the sale proclamation suffers from material irregularity. The executing Court held that the final decree was passed only against the petitioners because the 6th judgment debtor had died after the preliminary decree but before the final decree was passed. The preliminary decree has declared that the respondents are entitled to the half share in the Plaint A Schedule Property, except Item No. 5 and half share in the cash amount of Rs. 5,420/- as also in the silver articles. It was also ordered in the preliminary decree for appointment of Commissioner inter alia for determining the mesne profits. The executing Court held that the final decree is not merely a declaratory decree and it is executable. Holding so, both the objections were rejected by the executing Court.
Feeling aggrieved by the rejection of E.A. 340/86, the judgment debtors preferred CRP No. 3643/89 and against the rejection of E.A. 421/86, they preferred CRP 3644/89.
It has been urged on behalf of the petitioners that when there is no direction in the decree that the decretal amount would be recovered from a particular defendant, the decree cannot be executed against him and the only remedy left to the respondents is to file an application for amendment of the final decree for fixing the liability of the judgment debtor who is to pay the decretal amount. In this case, the deceased judgment debtor No. 6 was managing the affairs of the plaint schedule property till her death and, therefore, she was liable to pay the mesne profits to the respondents, particularly because when they have also alleged in the plaint that it was the judgment debtor No. 6 who was looking after the plaint schedule property and after her death, the 1st petitioner being the legatee of the deceased judgment debtor No. 6 is liable to account for the mesne profits.
On the other hand, it is submitted on behalf of the respondents that the judgment-debtors are jointly and severally liable to pay the decretal amount and, therefore, they are free to realise the decretal amount from all or any one of the judgment debtors. The suit for partition was filed against all the judgment debtors as also the deceased judgment debtor No. 6. The possession of the property that has fallen to the share of the respondents has been recovered from the present petitioners and, therefore, they cannot urge that the mesne profits cannot be realised from them. The learned counsel of the respondents has placed reliance on the case of Velutha Kunjamma Vs. Janaki Parvathi, .
In the case of Velutha Kunjamma Vs. Janaki Parvathi, it was decreed that the plaintiff will recover the share with mesne profits from defendants 1 to 9 and the quantum of the mesne profits should be decided later. In pursuance of this direction, the quantum of mesne profits were a certained in the final decree and final decree was thereafter passed. Under these circumstances, it was held in this case that all the defendants were liable to pay the mesne profits and it is not open for them to raise the plea that only some of the judgment-debtors were in actual possession of the property and, therefore, they were alone liable to pay the mesne profits.
The case of Velutha Kunjamma Vs. Janaki Parvathi, is not of any help to the respondents because it is distinguishable on facts. In the case on hand, as shown above, Clause 4 of the final decree provides that the petitioners shall be entitled for Rs. 2,500/-being the half of the total mesne profits of Rs. 5,000/-arrived at by the Commissioner, but it did not specifically say that the petitioners are liable to pay the mesne profits of Rs. 2,500/- to the present respondents. It is not disputed before me that the respondents had alleged in the plaint that the deceased judgment debtor No. 6 was in management of the plaint schedule property after the death of their predecessor in title. Thus, it is established that until the right of the respondents has been declared to claim the mesne profits vide Clause 4 of the final decree, which is silent regarding the liability of the judgment debtors, the mesne profits cannot be recovered from the petitioners prior to that of the death of the judgment debtor No. 6.
In the case of Potti Venkata Kasi Viswanadham Vs. Vallabha Vyas, it is held that when there is ambiguity in the decree, certainly it is competent for the executing Court to go behind the decree and look into the pleadings and the judgment so as to have the assistance from them in order to have the ambiguity dispelled and, therefore, Section 47 of the CPC would not be a bar and the Court can call in aid the contents of the pleadings as well as the judgment. In this case, the decree merely conferred the title in regard to the right of lightand air to the plaintiff and it also said that he was en titled to an injunction restraining the opposite party from interfering with, but there was no positive direction along with the declaration of the right, for the implementation of the said order prescribing the course of action in case the order and directions were not implemented and also it lacked in many of the material particulars which a decree for mandatory injunction should inevitably contain.
In the case of Padmalaya Vs. Shyamsundar Sahu and Others, the final decree did not clearly indicate the liability of the fourth defendant for the amount under execution. There was no direction in the preliminary decree in relation to mesne profits. The Commissioner had determined the mesne profits and his report was accepted by the Court. The learned Single Judge of the Orissa High Court held that unless there is a clear determination that the defendant No. 4 is only liable to pay the entire mesne profits as decreed by the Court, he cannot be fastened with the liability to pay the decretal amount. In such a situation, the plaintiff should move the Trial Court for suitable amendment of the final decree passed by it fixing the liability of any one of the parties for the mesne profits and until that is done, in execution, defendant No. 4 cannot be proceeded against on the basis of the liability arising out of considering the decree.
I am in complete agreement with the view expressed in the case of Potti Venkata Kasi Viswanadham (2 supra) and Padmalaya3 that mere acceptance of Commissioner''s report does not give rise to a liability unless there is a clear determination that the mesne profits would be payable by all or any of the judgment debtors. Until the final decree is amended by the trial Court fixing the liability of all or any of the judgment debtors to pay the mesne profits, it cannot be recovered by executing the decree against the judgment debtors, particularly in a suit for partition where share of not only the plaintiffs and also the defendants are declared regarding the mesne profits claimable by them.
Due to oversight of the aforementioned position of law, the learned executing Court has fallen in error in holding that the petitioners are liable to pay the mesne profits for which the respondents are entitled vide Clause 4 of the final decree.
The learned Counsel of the petitioners has conceded and rightly conceded that there is no force in CRP 3644/89, particularly because the sale has been challenged under Order 21, Rule 90 of the CPC in E.A. No. 650/89.
The learned Counsel of the petitioners admits that the plaint schedule property which had fallen to the share of the respondents was in their possession from the date of the death of the judgment debtor No. 6, but there is no material on record to find out the exact date, month and year when the judgment debtor No. 6 has expired. But, it is clear that the petitioners are liable to pay the mesne profits as per the final decree, at least from the date of the death of the judgment debtor No. 6. The final decree has been passed on 4-3-1982. After the lapse of about 14 years, it does not appear to be reasonable to direct the respondents to file an application before the trial Court for determining the liability of the persons who are liable for payment of the mesne profits prior to the death of the judgment debtor No. 6 and, therefore, in the peculiar circumstances of the case, it would be proper and reasonable to direct the trial Court to determine the liability of the persons to pay the mesne profits to the respondents after affording an opportunity to both the parties to the revision of being heard so as to clear the ambiguity and to accordingly amend the final decree.
In result, the revision petition bearing No. 3644/1989, being devoid of substance is dismissed. The revision petition bearing No. 3643/89 is allowed. The impugned order is set aside and the lower Court is directed to determine the liability of the persons for payment of the mesne profits before the death of the judgment debtor No. 6, Smt. Sanjamma and to amend the final decree accordingly by clearing the ambiguity and fixing the liability for payment of mesne profits as also to determine the date of death of the judgment debtor No. 6, Smt. Sanjamma so as to enable the respondents to recover the mesne profits from the date of her death till the recovery of possession of the plaint schedule property which had fallen to the share of the respondents. However, in the circumstances of the case, I order the parties to the revision to bear their own costs. The parties, through their learned Counsel, are directed to appear before the lower Court on 30-9-1996 for further proceedings and the lower Court is directed to make enquiry and amend the decree expeditiously, and preferably within a period of four months from the date of receipt of this order. The Registry is directed to communicate this order to the lower Court within a period of seven days from today.