Kudapa Subbanna vs Chitturi Subbanna and Others

Chandra Reddy, C.J.—The question to be answered by the Full Bench is as to whether mesne profits could be allowed for more than three years from the date of the decree.

The facts necessary for the present purpose may be briefly narrated. An action was laid in the court of the Subordinate Judge, Eluru, for possession of the A and C Schedule properties annexed to the plaint and for partition and possession of 1/24th share in the B Schedule properties. During the pendency of the suit, the plaintiff died and the 2nd plaintiff, her husband, was added as the legal representative. That suit was dismissed for reasons which need not be set out here. The 2nd plaintiff carried an appeal to the High Court of Madras A. S. No. 353 of 1933. In March 1938, the High Court reversed the judgment of the trial Court and granted a decree in favour of the appellant. The decree, inter alia, directed the lower Court to make an enquiry as to mesne profits from the date of the institution of the suit and to pass a final decree for the payment of the amount that may be found due upto the date of delivery of possession to the plaintiff.

In 1940, he filed I. A. No. 429 of 1940 for ascertainment of mesne profits and, during the pendency of it, he applied in E. P. No 29 of 1940 for delivery of A and C Schedule properties and for the appointment of a Commissioner for partitioning the B Schedule properties. I. A. No. 429 of 1940 was struck off after accepting security from the defendants for the mesne profits to be determined later on. In accordance with the orders passed in E. P. No. 129 of 1940, the appellant obtained delivery of possession of the A and C Schedule properties. The judgment-debtors carried an appeal against the order in E. P. No. 29 of 1940 to the High Court of Madras and obtained stay of further proceedings. Subsequently, on an application by the appellant complaining that he was dispossessed immediately after the properties were delivered to him, fresh delivery was ordered by the court on 31-8-1946 but it was actually effected in October, 1951.

Meanwhile, the appellant filed I. A. No. 558 of 1945 for revival of I. A. No. 429 of 1940 and for the ascertainment of mesne profits upto 1946. The executing Court determined mesne profits for 17 years from 1926 to 1943 and the profits for the period 1943 to 1946 were left out because an appeal was pending in the High Court against the order of fresh delivery. The judgment-debtors went up in appeal against this determination of the executing Court and the 2nd plaintiff preferred a memo of cross-objections. A Bench of this Court dismissed the judgment-debtors'' appeal and allowed the cross-objections filed by the 2nd plaintiff to some extent.

While that appeal was pending, proceedings were initiated by the present decree-holder for an enquiry into the mesne profits from 1943 to 1951 which led to this reference. This application was resisted by the judgment-debtors on grounds which are immaterial in the context of the present enquiry, no contest having been raised as to the period for which mesne profits were recoverable, the issue with which we are immediately concerned. The trial Court allowed mesne profits at Rs. 75/- per acre per year overruling the objections of the judgment-debtors. Dissatisfied with the quantum of mesne profits, the decree-holder has presented this appeal. The judgment-debtors preferred a memo of cross-objections questioning the legality of the order awarding mesne profits for more than three years from the date of the decree.

This matter was directed to be posted before a Full Bench to resolve a conflict between a Division Bench decision of this Court, which will be presently adverted to and that of Division Benches of Madras and of other High Courts.

We will now proceed to examine the point as to the period for which mesne profits could be awarded under Order XX, Rule 12, C. P. C. both with reference to the case law and the statutory provisions. It is convenient at this stage to look at the terms of Order XX, Rule 12, C. P. C. omitting the unnecessary portions:

Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree -

xx xx xx xx xx

c) directing an inquiry as to rent or mesne profits , from the institution of the suit until

i) the delivery of possession to the decree-holder,

ii) the relinquishment of possession by the Judgment-debtor with notice to the decree-holder through the Court; or

iii) the expiration of three years from the date as the decree, whichever event first occurs.

So far as we are aware, this is the only provision, in the Code which allows mesne profits from the date of the institution of the suit up to the time of delivery.

This provision has been the subject of judicial interpretation in many a case. We will now refer, to the decisions bearing on this subject.

Grish Chunder Lahiri v. Shoshi Shikhareswar tax, ILR 27 Cal 951, the decree, after declaring, the plaintiffs right to the property in dispute, recited that "he do got from the defendants khas possession of the same and mesne profits for the period of dispossession etc". doubt, the expression used was mesne profits, for the period of dispossession, indisputably, that is tantamount to mesne profits upto the date of possession. Their lordships of the Privy Council ruled that as this was more than three years from the date of the decree and to the extent of the excess, it was unauthorised by section 211 of the old Code. It is plain that the relief should be limited to three years notwithstanding the express terms of the decree that the plaintiff should get profits delivery of possession. This is clear authority in favour of the view that mesne profits could not be recovered for more than three years from the date of the decree. It is true that this decision was rendered u/s 211 of the old Code, which is the predecessor of Order XX, Rule 12(c), C. P. C. We will presently show that the position is the same even under the new Code.

However, we will read here section 211 of the Code 1882. That section enacted:

When the suit is for the recovery of possession of immovable property yielding rent or other profit, the Court may provide in the decree for the payment of rant or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or might the expiration of three years from the date of the date of the decree (whichever event first occurs) with interest thereupon at such rate as the Court thinks fit.

The only change effected in the new Code in this behalf is the addition of the clause "the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or". In our opinion, the insertion of this clause had not made material difference with regard to the term for which mesne profits should be awarded, the disjunctive, or, governing both clause (i) and clause (ii) despite its having been shifted from clause (i) and put in clause (ii). The Legislature by adding clause (ii) had fixed another date upto which mesne profits could be determined. We do not think that the Legislature intended to allow the decree-holder to recover mesne profits for an indefinite period and to enlarge the period for which mesne profits were recoverable under the old Code. That this is so would appear from the ratings to which we will advert presently.

The same view was taken by the Bombay High Court in Narayan Govind v. Sono Sadashiva, ILR 24 Bom 345. There, the decree dated 19-9-1884 directed the plaintiff to get mesne profits till the date of delivery at possession, the amount to be fixed in execution of the decree. Nevertheless, the Bombay High Court decided that the mesne profits should be limited to three years subsequent to the date of the High Court decree. Jenkins, C. J., who delivered the opinion of the Court, said at page 349:

But, we may point out that, as held by the Full Bench in Puran Chand v. Roy Radha Kishen, ILR 19 Cal 132 (FB), the proceedings for the purpose of ascertaining the amount of mesne profits are a continuance of the original suit and the Court in so ascertaining the amount Is bound by the provisions of section 211. It is true that possession has not yet been delivered to the decree-holder. But this fact does not prevent the clear provisions of the law being followed.

Likewise in Trailokya Nath v. Jogendra Nath, ILR 35 Cal 1017, it was laid down that successful plaintiff in a suit for possession and mesne profits could not claim mesne profits accruing after the filing of the suit for more than three years from the date of the decree. In support of this conclusion, the learned Judges relied on the judgment of the Judicial Committee in Bhup Indar Bahadur v. Bijai Bahadur, ILR 23 All 152 (PC), where it was said "it was held that mesne profits were recoverable upto May 11, 1895 (that was the date when the decree was eventually affirmed) and (see section 211 of the Code) for a further period not exceeding three years until recovery of possession." We may mention here that this was not a case in which the decree specifically directed enquiry Into mesne profits upto the date of delivery of possession.

Similarly, in Matte Sarayya Vs. Vepparathi Vydynatham, , it was decided by a Bench of the Madras High Court that in the absence of a period for the calculation of mesne profits being prescribed, the decree must be construed as awarding mesne profits for three years from the date of the decree since the grant of any further sum would be beyond the jurisdiction of the Court. This implies that the award of mesne profits for more than 3 years would be without jurisdiction.

We shall now consider the judgments rendered under O. XX, R. 12, C. P. C.

15 Godavarti Raja Vs. Uttaradi Matam Sri Ramachandraswami Varu and Another, It was held there that when the decree was one for possession and mesne profits until delivery, it must be interpreted as one giving mesne profits until delivery of possession subject to the limit of three years specified in cl. (iii) of O. XX, R. 12(c).

This was followed by a Single Judge of the Travancore-Cochin High Court in Narayan v. Lonappan, AIR 1956 TC 103. This view is shared by a Bench of the Allahabad High Court consisting of Mootham, C. J. and Raghubir Dayal, J, in Kumar Jagdish Chandra Vs. Bulaqi Das and Another, . The learned Judges dealt with this question elaborately and reviewed the case-law on the subject. They accepted the dictum in Godavarti Raja Vs. Uttaradi Matam Sri Ramachandraswami Varu and Another, as correct The opinion expressed there was that a decree, which was of the same description like the present one, should be construed as awarding mesne profits up to three years from the date of the decree in the light of O. XX, R. 12(c) (iii).

Bhagwant Vinayak Vs. Radhakisan Gangabisan and Others, contains the same principle. Miabhoy, J., held that Order XX, Rule 12 should be read into a preliminary decree for partition and possession and future mesne profits upto the date of recovery of possession, although it was not specifically laid down in the decree that mesne profits were to be restricted to a period of three years.

The doctrine of Sahijram Rupchand v. Alu Tundu, AIR 1942 Sind 60, is in accordance with this. A bench of the Sind Chief Court laid down that in interpreting a decree awarding mesne profits under O. XX, R. 12 till date of possession, the Court could not read the decree as repugnant to or as ignoring the statutory limitations envisaged in Order XX, Rule 12, C. P. C.

In all these cases, the decree directed an enquiry into mesne profits until delivery of possession to the decree-holder. Notwithstanding this, it was, ruled in all of them that this relief should be confined only to three years from the date of the decree even if delivery of possession was obtained after the expiration of three years from the date of the decree.

A discordant note was struck by Umamaheswaram and Ranganatham Chetty, JJ. in Chittorui Subbanna Vs. Kudapa Subbanna and Others, . It may be recalled that this appeal also arose out of the ascertainment of mesne profits as directed by the same decree, the matter arising between the same parties as in the present case and mesne profits were allowed to the decree-holder upto 1943 though the decree was made in the year 1938. The learned Judges opined that it was not open to the judgment-debtor to contend that mesne profits ought not to be determined upto the date of delivery of possession since future profits were not directed to be determined in general terms but the decree expressly stated that a final decree should be passed for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff. In their view, there was no room for reading the terms of Order XX, Rule 12, C. P. C. into such a decree and restricting the mesne profits only upto three years from the date of the decree. They added that since no appeal was preferred against such preliminary decree, it had become final and it was not open to the Court to go behind the decree.

In support of their conclusion, they relied on a judgment of this Court in Mahant Narayana Dossjee Varu Vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, We do not think tha Mahant Narayana Dossjee Varu Vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, affords any analogy to a case under Order XX, Rule 12, C. P. C. That was a suit for recovery of mesne profits that accrued prior to the institution of the suit and thus falling within the ambit of Art. 109 which prescribes a period of three years for the recovery of profits, limitation commencing from the time the profits are received. Though the suit was instituted in 1937 and the plaintiff by reason of that article would ordinarily be entitled to profits until three years preceding the filing of the suit namely April 1934, the Subordinate Judge, who disposed of the suit, held that the plaintiff was entitled to mesne profits from 1933 onwards, the reason given by him being that the suit, should relate back to the original petition filed u/s 45 (2) of the Madras Hindu Religious Endowments Act. This award of mesne profits for more than three years became final in that in the appeal preferred by the aggrieved parties, no point was raised on this issue and this was confirmed by the High Court.

It is in such circumstances that the learned Judges in Mahant Narayana Dossjee Varu Vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, aid that it was not open in a mesne profits enquiry to go behind the preliminary decree which was confirmed by the High Court and that as the decrees have become final, the parties were bound by them. It is noteworthy that the Subordinate Judge considered that the suit related back to the original petition; in other words, he felt the suit should be deemed to have been filed on the date the Original Petition was filed. The learned Judges in Mahant Narayana Dossjee Varu Vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, , were not concerned with the correctness of this view as that had become final. Therefore, that was not a case where it was held that mesne profits could be awarded for more than three years under Art 109 of the Limitation Act. Even otherwise, that decision would not govern matters arising under O. XX, R. 12. The learned Judges did not discuss the scope of Order XX, Rule 12, C. P. C. No assistance could, therefore, be derived from Mahant Narayana Dossjee Varu Vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi,

Krishnan v. Kandan Velu, AIR 1955 TC 233, cannot also lend much support to the theory propounded by the learned Judges. That was a case of a compromise decree by and under which the decree-holder was allowed to receive future rent till recovery of possession of the property. Kumara Pillai, J. who heard the matter, held that being a decree under Order XXIII, Rule 3, C. P. C, the provisions of Order XX, Rule 12 were inapplicable and the decree-holder was entitled to execute the decree according to the terms thereof. In that situation, it is unnecessary for us to express any opinion on the correctness of AIR 1955 TC 233.

We are inclined to think that the dictum in Chittorui Subbanna Vs. Kudapa Subbanna and Others, is not sound and is inconsistent not only with the decided cases of various High Courts and of the Privy Council but also with the language of O. XX, R. 12, C. P. C.

A decree providing for the ascertainment of mesne profits until delivery of possession of property should be so construed as to harmonise with the provisions of Order XX, Rule 12 (c) (iii). The Court, which made the decree, could not have contemplated that the date of recovery of possession would pass the statutory period of three years laid down by Rule 12 (c) (iii). We should not interpret such decrees in a manner that would bring them into conflict with the statutory limitation Imposed by the rule. We have to read it in the light of Order XX, Rule 12, C. P. C. If it is not competent for a Court to allow profits for a longer period by reason of Order XX, Rule 12, C. P. C, there is no reason why we should not construe such a decree as providing for the determination of mesne profits until the recovery of possession but for not more than three years from the date of the decree. While empowering a Court to determine mesne profits in interlocutory proceedings, without the necessity of filing a fresh suit, under Order XX, Rule 12, C. P. C. the Code has also placed a limitation on that power with regard to the period for which a decree for future profits could be given and so it is not competent for a Court to allow profits for a term exceeding three years. That being the real position, there is no reason why we should think that the Judge, who passed the decree, intended to act in disregard of the statutory provisions. On the other hand, we should read it in consonance with Order 20, Rule 12, C. P. C. There is a large body of judicial opinion in favour of this view and this is the solitary case that has taken the opposite view.

For these reasons, we hold that Chittorui Subbanna Vs. Kudapa Subbanna and Others, , was wrongly decided and that the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree in spite of the provision in the preliminary decree directing enquiry as to mesne profits till recovery of possession of the property by the decree-holder.

We answer the question in the negative. The case will go back to the Bench that referred this matter for decision on other issues.

This appeal and the cross-objection came for final hearing on Friday the 16th day of February, 1962 before a Division Bench of Chandra Reddy, C. J. and Ananta-narayana Ayyar, J. The Court delivered on 23rd February, 1962, the following Judgment. This judgment was delivered by:-

ANANTANARAYANA AYYAR, J. :

This appeal and the connected memorandum of cross-objections arise under the following circumstances.

One Hudapa Subbanna was the plaintiff in O. S. No. 104 of 1926 on the file of the Subordinate Judge, Eluru. That was a suit for possession of certain properties namely, A and C schedules and for partition of B schedule. Chitturi Subbanna is the first defendant in that suit. After trial, the suit was dismissed. The plaintiff filed A. S. No. 353 of 1933 in the High Court at Madras. That Court, by its judgment dated 7-3-1938 awarded a decree granting past mesne profits and also further mesne profits till date of delivery of possession. The plaintiff ultimately filed I. A. No. 1014 of 1952 in O. S. No. 104 of 1926 in the Sub-Court, Eluru under order 20 R. 12 (2) and S. 151 C. P. C. praying for an enquiry into mesne profits for the period between February, 1943 and October, 1951. There were thirty one respondents in the petition: The first respondent contested the petition raising various pleas. The thirtieth respondent also filed a counter and contested it. The learned Subordinate Judge appointed a Commissioner to enquire into the mesne profits. After considering the report of the Commissioner and hearing both sides, the learned Subordinate Judge awarded a decree for a certain sum. The plaintiff filed A. S. No. 368 of 1956 valuing it at Rs. 43,980. Chittoori Subbanna filed cross-objections against the decree of the lower Court for mesne profits.

For purposes of convenience, we are hereafter referring in this judgment to Kudapa Subbanna as the plaintiff and to Chittoori Subbanna as the defendant.

One of the grounds raised in the memorandum of cross-objections was that the plaintiff was not entitled to recover mesne profits for more than three years from the date of the preliminary decree, which was passed in Chittorui Subbanna Vs. Kudapa Subbanna and Others, . In 1959 Andh LT 207 : (AIR 1959 AP 607) a Division Bench of this Court consisting of Umamaheswaram, J. and Ranganadham Chetty J. held in its judgment dated 13-9-1958 that there was no substance in the contention that mesne profits ought not to be awarded for more than three years from the date of the decree, under Order 20 R. 12 C. P. C. When this appeal and the memo of Cross-objections originally came on for hearing before us on 23-10-1959, a reference was made to the Full Bench in the following terms:

We are told that there is a conflict between Chittorui Subbanna Vs. Kudapa Subbanna and Others, . on the one hand and Matte Sarayya Vs. Vepparathi Vydynatham, and also decisions of other High Courts on the other, on the interpretation of Order XX, Rule 12 C. P. C. To resolve this conflict, this matter will be placed before a Full Bench.

Accordingly, a Full Bench of this Court (of which one of us was a member) formulated the following question-

Whether mesne profits could be allowed far more than three years from the date of the decree?

It answered the question in the negative. The matter is now coming up before us after reference to the Full Bench.

It is clear that, in view of the answer of the Full Bench mesne profits cannot be awarded to the plaintiff for more than three years counting from the date of the decree namely, 7-3-1938. The period, for which mesne profits were claimed in I. A. No. 1014 of 1952 fell entirely after expiry of a period of three years from the date of the decree namely, 7-3-1938. Consequently mesne profits as claimed in I. A. No. 1014 of 1952 cannot be granted at all. So, the appeal has to be dismissed and the memorandum of cross-objections has to be allowed on this ground alone if it were the only aspect to be considered. But, various ether points have been urged as well. We shall presently consider them.

For a proper appreciation of the respective contentions, it is necessary to briefly set out some relevant facts.

In these proceedings, we are concerned with A and C schedule properties and not with B schedule properties. The plaintiff filed E. P. No. 29 of 1940 for, delivery of possession of properties of A and C schedules He also filed on 31-7-1940 I. A. No. 429 of 1940 for ascertainment of mesne profits. The lower Court ordered delivery of properties of schedules A and C in E. P. No. 29 of 1940. Accordingly, plaintiff got possession of those properties on 17th, 18th and 20th of February 1943. Defendant filed C. M. A. No. 104 of 1943 in the High Court and obtained stay. It is the case of the plaintiff that the defendant forcibly entered into possession of the properties of A and C. schedules on 25-2-1943. The plaintiff again asked for delivery of properties and the Sub-Court, Eluru passed an order dated 31-8-1946 directing fresh delivery. C. M. A. No. 393 of 1946 against such order was dismissed by the High Court of Madras. Plaintiff obtained fresh delivery in October, 1951. Meanwhile, on 23-6-1945, the plaintiff filed I. A. No. 558 of 1945 for revival of I. A. No. 429/1940 which had been struck off on 25-9-1944 and for determination of mesne profits.

Though mesne profits were asked in that petition (I. A. No. 558 of 1945) upto 23-6-1945, by the consent of parties, mesne profits were determined for a period of 17 years i.e., 1926 to 1943 up to the date of the first delivery. The mesne profits beyond 1943 were left out by the order of the High Court because an appeal was pending in the High Court namely C. M. A. No. 393 of 1946 against the order of second delivery dated 31-8-1946. On those lines the Sub-Court passed an order dated 28-7-1948 in I. A. No. 558 of 1945, against which the defendants filed A. S. No. 736 of 1952 in this Court. A Division Bench of this Court, as referred to earlier by its judgment dated 13-9-1958, dismissed the defendant''s appeal and allowed to some extent, cross-objections which had been filed by the plaintiff. That judgment is the one reported in Chittorui Subbanna Vs. Kudapa Subbanna and Others, Leave to appeal to the Supreme Court has been granted in S. C. C. M. P. No. 4540 of 1959 against the judgment and decree in A. S. No. 736 of 1952 Chittorui Subbanna Vs. Kudapa Subbanna and Others, Plaintiff filed I. A. No. 1014 of 1952 on 16-9-1952 for enquiry into mesne profits from 1943-1951 and resulted in the order against which the present appeal and Cross-objections have been filed.

Sri C. V. Narasimha Rao, the learned Advocate for the appellant, has urged before us, the following contentions:

It is not open to the defendant to raise in this Court the plea that mesne profits cannot be granted for more than three years from the date of the decree itself, as the defendant had not raised it in the lower Court.

The defendant cannot challenge the award of mesne profits by the lower Court in his cross-objections (as distinct from an appeal).

Point 1: It is here convenient to refer to para 4 of the counter filed by the defendant which reads-

It is not correct to state that the petitioner is entitled to mesne profits from 1943 to 1951 on the plaint A schedule and from 1943 to 1950 oh the B schedule properties.

Thus, in this counter, the defendant has definitely contested the claim of the plaintiff for mesne profits from 1943 to 1951-, regarding properties of A schedule. It is true that he has not expressly mentioned or made any reference to Order 20 R. 12 C. P. C. and did not express explicitly in so many words, that the claim was not tenable because of the wording of O. 20, Rule 12, C. P. C. But I. A. No. 1014 of 1952 itself had been filed under O. 20 R. 12 C. P. C. and the entire proceedings and award of the lower Court were under O. 20 R. 12 C. P. C. Consequently, no special significance can be attached to or an adverse inference drawn from the defendants'' failure to refer to O. 20 R. 12 C. P. C. in the contention referred to above in his counter. We find that the defendant had substantially raised in the lower Court, regarding schedule A the contention which he has raised in his cross-objections. Even apart from this, we consider it fit to be allowed to be raised in this Court as it is a pure question of law. We accordingly allowed it as a ground validly raised in these proceedings (regarding A schedule and C schedule) and referred to the point concerned in it to the Full Bench and obtained the latter''s answer.

The learned Advocate for the appellant-plaintiff has also contended that the defendant cannot raise this ground as he had waived it by allowing the enquiry to go on regarding the concerned period and also by not raising it in the earlier proceedings in I. A. No. 429 of 1940. In the first place, it must be remembered that, in I. A. No. 429 of 1940, there was no scope for the defendant contending that mesne profits could not be asked for any period after three years from the date of the decree; for, three years had not yet elapsed between the date of the decree (7-3-1938) and the date of the filing of the petition (I. A. No. 429 of 1940) on 31-7-1940. In I. A. No. 558 of 1945, for revival of I. A. No. 429 of 1940 and for determination of mesne profits, the defendant did not raise the plea that mesne profits could not be awarded beyond three years. This fact is also mentioned in the judgment of the Bench in Chittorui Subbanna Vs. Kudapa Subbanna and Others, wherein it is stated thus:

Objections were filed as against the Commissioner''s report only in regard to the quantum...

In paragraph 6 of the Judgment, the learned Subordinate Judge summed up the position in the following terms:

So far as the A and C schedule properties are concerned, there is no dispute about the mesne profits in regard to their having to be ascertained for a period of 17 years i.e., from 1926 to 1943...

The contest is only with regard to the quantum and not to the periods mentioned above,

But, the Full Bench has clearly stated that it is not competent for a Court to allow profits for a term exceeding three years, it observed as follows:

... For these reasons we hold that Chittorui Subbanna Vs. Kudapa Subbanna and Others, was wrongly decided and that the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree in spite of the provision in the preliminary decree directing enquiry as to mesne profits till recovery of possession of the property by the decree-holder.

Thus, the Full Bench has positively held that the Court could not validly award mesne profits for more than three years from the date of the decree.

Reliance is placed by Shri C. V. Narasimha Rao on the decision in London Chatham and Doer Railway Co. v. South Eastern Railway Co. (1888) 40 Ch D 100. In that case, two railway companies have entered into an agreement to submit matters in dispute to arbitration. Under the provisions of the 4th and 26th sections of the Railway Companies Arbitration Act 1859, it was obligatory on the Court to give effect to the agreement for arbitration if either of the parties insisted on it, but the Court was not deprived of its jurisdiction to determine the matters in dispute if neither party insisted on arbitration. In that case, the defendant had, in his pleadings, insisted on his right to arbitration, but had failed to raise the point at the hearing, and had gone into evidence on the merits. The Court of Appeal refused to allow the point to be raised in the appeal. In fact, in that case the defendant waived that plea and, in consequence, his right to the agreement for arbitration being given effect to by the Court. His conduct is referred to by the learned Judges as follows: (at page 105).

...But even then the Defendants did not say while the decision in the House of Lord is pending we cannot contend that this point ought to go to an arbitrator, but we do not abandon it, we still desire to keep it open; ''but they go on with the trial and they get the judgment of a Court upon the evidence on the question which they now say the Court ought never to have entertained. In my opinion, parties ought not to be allowed to do that. If when they can insist on the Court not going into the merits of the case and deciding questions between the parties, they abstain from doing so, and are defeated on the merits, in my opinion it is too late to insist before the Court of Appeal on any right to object to the jurisdiction of the Court which they might have had if they had insisted on it in a proper way and at a proper time.

In that case, the Court had jurisdiction only if the defendant, like the plaintiff, did not insist on the arbitration agreement being given effect to. Though the defendant formally raised the plea viz., insisted in giving effect to agreement for arbitration in his pleadings, in fact he waived it by his conduct at the time of trial, if the defendant had succeeded in the trial Court, he would have kept quiet but because he did not succeed and felt dissatisfied with its decision, he tried to come forward with the plea in the appeal. In effect, the defendant took up an attitude so as to obtain the benefit of the decision, if it were in his favour and endeavour to set aside the decision, if it were adverse to him. In those circumstances the learned Judges felt that the appellant acted in an indecisive manner and that the point should not be allowed to be raised in the appeal.

In the present case, the position is materially different. So far as I. A. No. 1014 of 1952 is concerted, the defendant did raise the contention in the lower Court regarding schedule A that the plaintiff was not entitled to mesne profits for the period claimed. There is nothing to prove or even indicate that he gave up that plea. Waiver means an intentional relinquishment of a known right. It implies being conscious of one''s right and giving it up. We find that the defendant did not give up his plea or waive his objection to the award of mesne profits for a period for which mesne profits could not be lawfully given under Order 20 Rule 12 C. P. C.

In S. Raja Ghetty and Others Vs. Jagannathadas Govindas and Others, ) a lease of a cinema theatre with furniture, fittings, talkie equipment, machinery etc., was entered into by a registered agreement after the commencement of the Madras Buildings (Lease and Rent) Control Act (XV of 1946) and the lease contained inter alia provisions as to the due date for payment of rent, hire etc., and for re-entry in case of default in their payment. An application was filed by the landlord for eviction of tie tenant under S. 7 (2) (i) of the Act for default in payment of a month''s rent on the due date. The Madras High Court held that the provisions or Madras Act XV of 1946 would not apply to the lease in question as the landlord must, by the agreement, be deemed to have waived, the right to evict conferred by the Act. In this case, there is no agreement between the plaintiff and the defendant that the latter should pay mesne profits irrespective of limitation.

Assuming for argument''s sake, without admitting that the defendant waived the plea in the lower Court regarding properties of schedule A and kept quiet without pressing it, it would only mean that he must be placed in the same position as if he had not raised the plea in his counter. It cannot be treated as, or deemed to be, positive consent given by the defendant to award of mesne profits for a period for which the Court was not ordinarily competent to grant under Order 20 Rule 12 C. P. C. The defendant did not positively consent in the lower Court to mesne profits being awarded for the period claimed in I. A. No. 1014 of 1952, regarding Schedule A or Schedule C properties; as distinct from the quantum. Under the law i.e., Order 20 Rule 12 C. P. C. as interpreted by the Full Bench and the facts namely the claim being for a period which entirely more than three years beyond the date of the decree, the lower Court had no competence or jurisdiction to grant the relief. Consequently, even if the defendant did not actually raise the plea but kept silent without making reference to the lack of competence and jurisdiction of the Court to grant the mesne profits as claimed in I. A. No. 1014 of 1952, all the same, the Court did lack jurisdiction and competence to award the relief. We do not find it necessary to consider whether mesne profits for the period claimed could have been granted it the defendant had positively agreed to their being granted though it was more than three years after the date of the decree. For, on the relevant facts and contentions made before us, that question does not arise and there is no need to go into that question.

In Kiran Singh and Others Vs. Chaman Paswan and Others, the Supreme Court held that a decree passed by a Court without jurisdiction was 3 nullity and that its invalidity could be set up whenever and wherever it was sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Hence, the ground now raised by the defendant can be raised even in this appeal though, in fact, it had not been raised in the lower Court. We find that Contention No. 1 is not tenable.

Contention No. 2. Order 41 Rule 22 (1) runs as follows:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court...

Shri C. V. Narasimha Rao has relied on the decision in Pran Krishna Das v. Protab Chandra, 38 and Cas 536 : (AIR 1918 Cal 227) wherein it was held that Order 41 Rule 22 C. P. C. only permitted a respondent to support the decree of the lower Court on any of the grounds decided against him or to take cross-objections and that it did not entitle him to take an entirely new ground which was not decided against him and which was not in issue in the lower Court. That was a case of an appeal against an order passed in execution. It does not appear from the reports that any cross-objection was filed in the appeal. In fact, it was observed as follows

There is no question of cross-objection in this case, and the particular ground which is now taken was not decided against the respondent, nor was it in issue in the lower court nor was it the subject of adjudication at all.

That decision is not an authority for the proposition that a respondent cannot take a new ground in a cross-objection which is actually filed by him.

The decision of the Bombay High Court in R.S. Rammohanrai Jaswantrai Desai and Others Vs. Somabhai Nathabhai Patel and Others, cited by Sri C. V. Narasimha Rao also does not help the appellant. That was a case where cross-objections could not possibly be filed by a party because nothing had been decided against him and consequently, that party could not appeal from the decree.

In Ramasray Singh and Others Vs. Bibhisan Sinha and Others, the facts were : On an application filed u/s 38 (3) of the Bengal Money Lenders Act by the borrower against the creditor, two points arose for decision; (1) Is the loan a commercial loan ousting the scope of the Bengal Money Lenders Act, 1940 and (2) If it was not a commercial loan what should be the amount of the liability of the applicant calculated in accordance with the Bengal Money Lenders Act. The learned Subordinate Judge held on Point No. 1 that the loan was not a commercial loan and on Point No. 2 that the amount due was Rs. 2,029/-. The borrower filed an appeal against the quantum before the District Judge. The lender did not file an appeal but filed cross-objections in time. The District Judge held in the appeal that the amount due was only rupees 1956. He also held that the lender should have filed an appeal and that the cross-objections was not entertainable and accordingly dismissed the cross-objections. The lender appealed to the High Court. The learned Judges observed as follows: (at page 373)

The contention of the learned advocate appearing on behalf of the respondent was that before a party can file cross-objections he must accept some part of the decree as good. If he challenges the whole of the decree in that case according to him, the respondent to the appeal has no right to file a cross-objection. In our view that contention is unsound.

Order 41 R. 22 consists of two parts...

the second part of R. 22 gives the respondent a right to file a cross-objection which he could have taken by way of appeal. This right to file a cross-objection is not limited in the way suggested by the respondent. If an appeal is filed, the respondent to the appeal, without filing any appeal, can take cross-objection to the decree on any ground on which he could have filed an appeal.

We express our respectful accord with the above observations. So, the respondent can impugn the award of mesne profits by the lower Court for more than three years by means of a cross-objection. We find accordingly and hold that contention (2) is also not tenable.

In the result, we find that all the contentions raised by the appellant in A. S. No. 368 of 1956 are untenable. The award of mesne profits by the lower Court for the period February, 1943 to October 1951 is invalid and improper. Consequently, we dismiss the appeal but in the circumstances we direct each party to bear its own costs throughout.

We allow the cross-objections and dismiss I. A. No. 1014 of 1952. But, considering the circumstances of the case, we direct each party to bear its own costs.