Jhari Lal Gope and Others vs Ramdhikari Missir

Agarwala, J.—This is an application by some of the defendants to a suit for mesne profits. The facts were that the opposite party as thicadar of mauza Harpur Rewari instituted a suit for 416 bighas of land which he claimed to be the proprietor''s bakasht and for mesne profits for the years 1333 and 1334 Fasli, alleging that the defendants had conspired to dispossess him. The claim for possession was subsequently abandoned and the suit tried purely as a suit for mesne profits. On 3rd April 1929, a joint preliminary decree for mesne profits was passed against the defendants. Defendants 1 to 8 and 29 appealed to this Court in First Appeal No. 117 of 1930.

Some of other defendants amongst whom were the petitioners before us, preferred First Appeal No. 116 of 1930 against the preliminary decree. On 12th September 1933, the High Court modified the decree of the Court below. The decree of this Court was in these terms:

It is ordered and decreed that this appeal be allowed in part and the decree of the Court below shall be varied to this extent that a decree for mesne profits shall be made in favour of the plaintiff for the years in suit against each of the defendants or group of defendants who were admittedly in possession of lands and for the area over which they admit to be in possession in their written statements. It is further ordered and decreed that in other respects the decree of the Court below shall be affirmed and the appeal shall be dismissed with costs in this Court, the appellants paying to the plaintiff-respondent the full costs and also to the defendant-respondent third party. It is also ordered and decreed that costs in the Court below so far as the defendants appellants and the plaintiff-respondent are concerned shall be proportionate to success, and the order for costs of the lower Court against those defendants who have not appealed shall remain.

In the meanwhile the plaintiff had applied to the trial Court for ascertainment of mesne profits according to the original preliminary decree of the Subordinate Judge. A final decree was drawn up on 10th February 1932, in accordance with the Subordinate Judge''s original preliminary decree. The amount of mesne profits was ascertained to be Rs. 16,000 and odd. Against this final decree there was an appeal by defendants 1 to 8 and 29, being First Appeal No. 67 of 1933, the memorandum of appeal of which was presented to this Court on 3rd May 1932. That appeal succeeded. The High Court directed by its order dated 24th August 1936, that the case should be remanded to the Court below for the purpose of apportioning the liabilities of the then appellants, defendants 1 to 8 and 29.

In accordance with this direction the Subordinate Judge apportioned the liabilities of defendants 1 to 8 and 29 by an order dated 14th January 1937. Thereafter the plaintiff applied for execution of the entire final decree of 10th February 1932. As against defendants 1 to 8 and 29 he sought to recover the amount which had been found due from them by the Subordinate Judge after the remand by the High Court in First Appeal No. 67 of 1933. As against the remaining defendants, he sought to execute for the balance of the mesne profits.

Some of the defendants then applied for amendment of the final decree of 1932 in accordance with the direction of the High Court in First Appeals Nos. 116 and 117 of 1930. That application has been rejected. The first question which arises is with regard to the order of this Court in First Appeals Nos. 116 and 117 of 1930.

By its terms it was a direction to the learned Subordinate Judge to apportion the mesne profits which had been found due from the defendants against each of them or each group of them in respect of the several areas of which they admitted that they were in possession by their written statements. There is no doubt that under Order 41, Rule 33, this Court as an Appellate Court had power to pass an appropriate order affecting the interests of defendants who were not appellants as well as of those who were appellants and there is nothing in the language of the decree which indicates that the Court did not intend to take this course.

I am of opinion therefore that the Court did intend to direct an apportionment not only of the liabilities of the defendants appellants, but of all the defendants, The judgment of the Court proceeded on the ground that in the circumstances of the case a joint decree should not have been passed. That being in my view the proper construction to place on the decree of this Court in the appeal against the preliminary decree the next question is what the effect of that decree is on the final decree prepared by the Subordinate Judge in 1932. In Taleb Ali and Another Vs. Abdul Aziz and Others, , Sir George Rankin C.J. presiding over a Full Bench of the Calcutta High Court said:

Where an appeal has been brought from the preliminary decree, before the final decree has been passed, this Court has consistently held that such appeal is competent and that, if the preliminary decree be set aside, the final decree falls to the ground along with it.

Later on in the judgment he said:

I would add that when a preliminary decree is set aside, the final decree is superseded, whether the appeal was brought before or after the passing of the final decree.

That decision is in agreement with the View taken in this Court in AIR 1916 Pat 370 Wahidunnissa v. Deep Narain Prasad and in AIR 1930 Pat 177 Wajihunnissa v. Banke Behari Singh. In that case the referring Judges were Das and Kulwant Sahay JJ. In the order of reference Kulwant Sahay J. referred to a decision of Sharfuddin J. sitting singly in which that learned Judge held that a final decree passed during the pendency of a second appeal ceased to exist since the preliminary decree was modified by the High Court and observed : "The ground work of the final decree having been set aside the final decree became ineffectual."

The decision of Sharfuddin J. was taken in appeal under the Letters Patent. In the course of the judgment in the Letters Patent Appeal Sir Lawrence Jenkins said:

The decree of the High Court of 8th January 1903, though a preliminary decree, must be regarded as decisive of the rights of the parties, notwithstanding the fact that there had been a prior final decree and in the special circumstances of this Case we have so to determine.

In the view of this Court and of the Calcutta High Court therefore the final decree passed by the learned Subordinate Judge in this case on 10th February 1932, was superseded by the decree passed by this Court in the appeals from the preliminary decree.

That being so, it seems to me that until a final decree in accordance with the appellate decree of this Court is passed there is no decree which the plaintiff can execute against the petitioners. It was argued, however, by Dr. Mitter on behalf of the plaintiff that this Court has in fact passed a final decree in First Appeal No. 67 of 1933. As I have already stated the appellants in that case were only defendants 1 to 8 and 29. As between the plaintiff and those defendants the decree of this Court in First Appeal No. 67 of 1933 has finally determined their rights; but the defendants who were not parties to that appeal and who were satisfied with the direction given by this Court in the appeals from the preliminary decree were entitled to refrain from appealing against a decree with which they were satisfied and to wait for the drawing up of a final decree.

If that decree had been passed, and had not followed the directions of this Court so far as they were concerned, it would then have been necessary for them to determine whether they would challenge the final decree by appeal or not; but until such a decree comes into existence there was no occasion for them to appeal and in my view, no decree against them capable of execution. The Subordinate Judge will now proceed to draw up a final decree in accordance with the decision of this Court in First Appeals Nos. 116 and 117 of 1930. The application is allowed and the petitioners are entitled to their costs. We assess the hearing fee at three gold mohurs.

Rowland, J.

I agree. That an appeal from a preliminary decree is maintainable and that its result is to supersede the preliminary decree seems now to be the concurrent view of all the High Courts in India. I may refer, in addition to the cases cited, to a Full Bench decision of the Allahabad High Court in Kanhaiya Lal and Others Vs. Tirbeni Sahai and Others, , and decision which is to the same effect in AIR 1915 Mad 197 Lakshmi v. Maru Devi. In principle all these decisions seem to me to be entirely in comformity with the pronouncement of the Judicial Committee of the Privy Council in AIR 1926 PC 93 Jowad Hussain v. Gendan Singh. In this case the question before their Lordships was one of limitation, that is to say, whether an application for a final decree must be made within three years of the date fixed in the preliminary decree for payment when there had been an appeal from the preliminary decree and their Lordships held that time would run from the final order dismissing the appeal from the preliminary decree and their Lordships approved the observation of Banerji J. in Gajadhar Singh Vs. Kishan Jiwan Lal and Others, :

The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is thedecree of the Appellate Court which is the final decree in the cause,

They also approved of the summary of the position put by Tudball J.:

If an appeal is preferred, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree, and only that, which can be made final in the cause between the parties.

The preliminary decree finally effected between the parties was thus the decree of this Court dated 12th September 1933, and that must be read in the light of Order 20, Rule 12, Sub-rule (2) that where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. In pursuance of the preliminary decree of this Court it was for the Court of first instance to make the inquiry and to prepare the final decree in accordance with its results.

Thus I do not find any substance in the contention of Dr. Mitter that it was for this Court and not for the Subordinate Judge to pass the final decree for mesne profits in the suit as between the plaintiff and all the defendants. One other point was raised and that was that the petitioners before us had another remedy, that is to say, they could have appealed from the final decree and not having availed themselves of that remedy they ought not to be heard now to object against its execution.

A similar argument was raised in a case to which I have already referred, AIR 1915 Mad 197 Lakshmiv.Maru Devi, in which it was pointed out that when the law gives a person two remedies he is entitled to avail himself of either of them unless they are inconsistent. That observation applies to the fact of the present case.