Dilip Kumar Chatterjee vs Hrishikesh Banerji

Das Gupta, J.—On July 8, 1946 Respondents Nos. 3 and 4 obtained a decree against Respondent No. 1, Hrishikesh Banerjee, in his personal capacity. In execution of that decree certain properties were brought to sale and was purchased by the present Appellant on August 4, 1947, for the sum of Rs. 5,150. This sale was confirmed on September 5, 1947 and possession through Court was taken on September 10, 1947. Respondents 1 and 2, in their capacity as executors to the estate of their father late Mahendra Nath Banerjee, filed an application under Order XXI, Rule 100, alleging that they were in possession of the properties as executors and neither of them being judgment-debtor in their capacity as executors they had been wrongfully dispossessed and they should be put into possession. The application was successful and an order was passed on February 26, 1948 directing that the applicants, i.e., Hrishikesh Banerjee and Kumud Ranjan Banerjee in their capacity as executors to the estate of late Mahendra Nath Banerjee be put into possession. An application under Order XXI, Rule 90, of the CPC was filed by Hrishikesh Banerjee in his personal capacity. That application was allowed on the September 11, 1948. Another application was filed by Hrishikesh Banerjee on the same date, viz., September 27, 1941, in his personal capacity under Order IX. Rule 13 of the Code of Civil Procedure. That was allowed on the April 10, 1948. On July 26, 1948, the Respondents 1 and 2 as executors to the estate of late Mahendra Nath Banerjee filed an application purporting to be one u/s 144 of the Code asking for restoration of possession of the properties. Therein they mentioned their intention to make in future an application after restoration of possession for damages and for mesne profits. The court passed an order allowing this application for restoration of possession. On the September 15, 1948, the application out of which the present appeal has arisen was filed. The application purported to be by Hrishikesh Banerjee and Kumud Ranjan Banerjee was "for selves and as executors to the estate" of late Mahendra Nath Banerjee. The vakalatnama was, however, given by them only as executors. Below the signatures of the Petitioners also there appeared only the description "as executors "to the estate of late Mahendra Nath Banerjee." The trial court come to the conclusion that they as executors had no locus standi to file application for mesne profits and also that restoration could not be obtained against the present Appellant as he was a bona fide purchaser for value. The learned court, therefore, though agreeing that in a proper case the court will pass order for restoration u/s 151 of the CPC even when provisions of Section 144 were not applicable, rejected the application. On appeal by Hrishikesh Banerjee and Kumud Ranjan Banerjee the learned Additional District Judge, Alipore, thought it proper that the application which appeared to have been filed for amendment of the application and the vakalatnama dated September 15, 1948, by describing them not only as executors but also in their personal capacities should be allowed. "He, accordingly, allowed the application for amendment and remanded the case to the trial court for disposal in accordance with law after taking evidence on the question whether the present Appellant before us was a bona fide auction-purchaser or not. The present appeal is by the auction-purchaser and is directed against this order of the appellate court.

In the first place, I am clearly of opinion that there is no question here of amending the application. As already stated, in the application Hrishikesh Banerjee and Kumud Ranjan Banerjee did describe themselves for selves and as executors. The defect was in the fact that the vakalatnama was given by them only as executors. I cannot see how a vakalatnama by a party can be ordered to be amended in this manner.

It has been argued, however, by Mr. Bose on behalf of the Respondents 1 and 2 that the application for mesne profits should succeed even though the application is by Hrishikesh Banerjee and Kumud Ranjan Banerjee as executors. He based this contention on the fact that on an application by these two persons in their capacity as executors under Order XXI, Rule 100 of the Code of Civil Procedure, the court did pass an order under Order XXI, Rule 101 of the Code. His contention is that the deprivation of possession of these two persons as executors being due to a mistake of the court it is the court''s duty to put the matter right and for that purpose the court should exercise its jurisdiction u/s 151 of the CPC to give him mesne profits.

It has been clearly recognised that the power of giving restitution is in the courts quite apart from the provisions of Section 144 of the Code. It has for that reason been held in a large number of cases that where the provisions of Section 144 are not in terms applicable, the court would not hesitate to exercise its inherent jurisdiction u/s 151 of the Code by restoring possession and also by allowing mesne profits to persons, where it is in the interest of justice to do so. This power has been exercised in many cases where a sale has been set aside under

provisions of Order XXI, Rule 90 of the Code. In my judgment the authorities and principles mentioned above are of no assistance to the Petitioners in whose favour an order under Order XXI, Rule 101 of the Code had been passed. Where a sale is set aside the position is clear that the possession of any person on the basis of that sale is held to be without any justification.

Where, however, an order is made under the provisions of Order XXI. Rule 101, the court has nothing to do with the rightfulness of the possession. Order XXI, Rule 101 is in these words:

Where the court is satisfied that the Appellant was in possession of the property on his own account or on account of some person other than the judgment-debtor it shall direct that the applicant be put into possession of the property.

It is important to note that it is not necessary for the court to be satisfied that the applicant had a right to possess the property. An order under Order XXI, Rule 101 has to be passed even in favour of a trespasser. It seems to me absurd to say that where a trespasser has been put into possession under Order XXI, Rule 101, the court would think it necessary in the interest of justice that he should get mesne profits or damages. It is important to note also the words actually used in the concluding portion of the section as regards the order the court would pass, viz., it would direct that the applicant be put into possession of the property. The legislature''s omission to use words in Order XXI, Rule 101, similar, to the concluding words in the first paragraph of Section 144 of the CPC is, in my judgment, deliberate and significant. If it was thought proper that even when an order of restoration of possession is to be given on an application under Order XXI, Rule 100 of the Code, the person who is being put into possession will be entitled to mesne profits for the period for which he has been out of possession, it is natural to expect that the legislature would have put after the words "the applicant be "put into possession of the property", the'' words similar to what it has used in Section 144 of the Code of Civil Procedure, viz., that the court may make any orders including orders for damages, compensation and mesne profits which are properly consequential upon such order.

On consideration of the entire scheme of law on an application under Order XXI, Rule 100 of the Code of Civil Procedure, I have come to the conclusion that in cases of such restoration it is neither necessary nor proper that the court should order mesne profits in exercise of its jurisdiction u/s 151 of the Code. My conclusion, therefore, is that the present application by Hrishikesh Banerjee and Kumud Ranjan Banerjee for mesne profits must fail.

I would, accordingly, allow the appeal, set aside the order passed by the learned Additional District Judge and restore the order passed by the learned Munsif. The Appellant will get his costs here and below.

No order is necessary on the application for revision.

Guha Ray, J.

I agree.