Kala Singh and others vs Sant Lal and another

J.V. Gupta, J.—This revision petition will also dispose of Civil Revision Petition No. 1964 of 1987, as the question involved is common in both the cases.

The decree holder Sant Lal filed an application for the recovery of mesne profits from rabi, 1985 to kharif 1986 and another application for the same purpose for rabi 1987 alleging that the suit for possession by way of pre-emption was decreed on June 1, 1984 and that the said decree was maintained in appeal which was dismissed on November 13, 1984. Since an ad interim injunction order was passed on June 15, 1984 by the lower appellate Court whereby the judgment debtors were to furnish security for mesne profits at the rate of Rs. 1,000/- per acre per crop, the decree-holder was entitled to recover the mesne profits accordingly. That application was resisted by the judgment debtors on the ground that the same was not maintainable in the said form and that the decree-holder had no right to recover the amount of mesne profits after the appeal was dismissed by the Additional District Judge on November 13, 1984. According to the judgment-debtors, the said ad interim order dated June 15, 1984, was enforceable only till the appeal was pending. For the subsequent period, if any, mense profits could be claimed by way of a separate suit and not in the execution proceedings. The executing Court relying upon Tej Ram v. Amar Singh (1986-2) 90 P.L.R. 359 came to the conclusion that executing Court was competent to determine the mesne profits till possession was delivered to the decree-holder in execution, Consequently, a sum of Rs. 40,000/- was determined to be the mesne profits, giving rise to Civil Revision Petition No. 1963 of 1987 and Rs. 10,250/- in the other case, giving rise to Civil Revision Petition No. 1964 of 1987.

The learned Counsel for the Petitioners, the judgment-debtors, submitted that the only remedy for the decree-holder to recover the mesne profits, if any, after the disposal of the appeal on November 13, 1984, was to tile a separate suit, as contemplated u/s 77 Third Group of the Punjab Tenancy Act. The ad interim injunction order passed by the lower appellate Court dated June 15, 1984, came to an end when the appeal was dismissed on November 13, 1984. On the basis of the said ad interim order further mesne profits could not be realised in execution. Thus, argued the learned Counsel, the whole approach of the executing Court in this behalf was wrong, illegal and misconceived. The learned Counsel also contended that Tej Ram''s case (supra), was clearly distingnishable and had no applicability to the facts of the present case.

On the other hand, the learned Counsel for the decree-holder submitted that the decree-holder was entitled to the mesne profits until the possession was delivered to him and the same had been assessed by the executing Court on the basis of the ad interim order dated June 15, 1984. According to the learned Counsel, the order of the executing Court was just and proper and could not be interfered with in the revisional jurisdiction.

After hearing the learned Counsel for the parties, I find merit in this revision petition.

Admittedly, the ad interim order dated June 15, 1984, whereby the judgment-debtors were required to furnish security for mesne profits came to an end when the appeal was dismissed on November 13, 1984. It is the common case of the parties that there was no stay order after the dismissal of the appeal though the matter had gone up to the Supreme Court. That being so, the decree-holder was entitled to recover the mesne profits as per the terms of the ad interim order dated June 15, 1984. till the final disposal of the appeal on November 13, 1984. After the said period, if the decree-holder claimed any mesne profits. for that a separate suit could be filed as contemplated u/s 77 Third Group of the said Act, or by any other remedy which may be available to him, but the executing Court as such could not allow him mesne profits because there was no such decree or order in favour of the decree-holder granting mesne profit thereafter, i.e., after November 13, 1984. Admittedly, the ad interim order dated June 15, 1984, came to an end as soon as the appeal was dismissed. Tej Ram''s case (supra), relied upon by the executing Court was clearly distinguishable and had no applicability to the facts of the present case. In the said case, the question considered was whether the persons who stood surety for the judgment-debtor in the two Courts, i.e., in the lower Appellant Court as well as in the High Court are liable to pay the amount for which they are sureties, or not. The question whether the decree holder is entitled to the mesne profits in execution proceedings or not after the appeal etc. is dismissed was never considered therein. Apart from that what should be the amount to be recovered by way of mesne profits is to be determined by regular proceedings. The ad interim order dated June 15, 1984, could not be made the basis for the same. Thus, the approach of the executing Court in this behalf was illegal. It had no jurisdiction to order the recovery of mesne profits from the judgment-debtors unless there was any valid order or decree to that effect in favour of the decree holder.

Consequently, both the revision petitions succeed and are allowed. The impugned orders are set aside and the objection petitions are allowed with no order as to costs.