Nandkishore Lall vs Chandrika Prasad Singh

Fazl Ali, J.—This is an appeal by one of the judgment-debtors whose objection to execution of a decree has been dismissed by the Subordinate Judge of Monghyr. It appears that in 1927 Ram Sekhar Prasad Singh and certain other persons brought a suit for recovery of possession of certain lands and mesne profits. The suit was decreed and the plaintiffs applied for the ascertainment of the mesne profits. While the enquiry relating to the mesne profits was proceeding the plaintiffs assigned the decree for mesne profits to the respondent Chandrika Prasad with the result that ultimately when the amount of mesne profits was ascertained, a decree was passed in favour of Chandrika Prasad. He has now applied for the execution of the decree, but his application is resisted by the appellant on the ground that he is a benamidar for some of the judgment-debtors and therefore the decree cannot be executed against him under Proviso 2 to Order 21, Rule 16 which lays down that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others. The question whether Chandrika Prasad is or is not a benamidar for some of the judgment-debtors was enquired into by the Subordinate Judge (Court below) and he has, upon a consideration of the evidence adduced before him, come to the conclusion that the appellant, judgment-debtor has failed to establish that Chandrika Prasad is a benamidar. The learned advocate for the appellant contends in this Court that the learned Subordinate Judge has come to a wrong decision and that the only conclusion, which can be drawn from the evidence which has been adduced by the parties, is that Chandrika Prasad was a benamidar on behalf of some of the judgment-debtors.

In my opinion however that question does not legitimately arise in these proceedings. The objection which has been preferred by the appellant in the Court below purports to be an objection under Proviso 2 to Order 21, Rule 16 and for the purpose of establishing it, it is necessary for the appellant to show firstly that the decree which was transferred to the respondent was a money decree and secondly, that the transfer took place after the decree now sought to be executed had been passed. It may be pointed out that what was transferred in this case was not a decree for an ascertained sum of money but the preliminary decree for mesne profits.

The learned advocate for the appellant, contends upon the authority in Viraragava Ayyangar v. Varada Ayyangar (1882) 5 Mad. 123 that a decree for mesne profits, even though the mesne profits may not have been ascertained, is a decree for money. That case however was decided under the old CPC under which after a decree for mesne profits was passed, the decree, holder had to go to the execution department and apply for the ascertainment of the mesne profits. Under the new Code however the proceeding taken for ascertainment of mesne profits is a continuation of the suit and under Order 20, Rule 12 after the inquiry is concluded, a final decree has to be passed in accordance with the result of such inquiry. There can be no doubt that under the present Code the final decree will be a money decree, but I am doubtful if the decree for mesne profits before the amount is ascertained can, strictly speaking, be regarded a money decree. Such a decree cannot be executed until it is made final and one may at least conceive of a case, though such a case will be rare, where the result of the inquiry under Order 20, Rule 12 may disclose that nothing is recoverable as mesne profits.

However that may be, the second point which I have indicated above seems to me to be a complete answer to the objection raised by the appellant in this case. Proviso 2 to Order 21, Rule 16, which has been relied upon by the appellant must be read along with the main provisions of that Rule and as was pointed out in Rameshwar Prasad Bhagat Vs. Ram Ratan Ram and Others, Order 21, Rule 16 is primarily intended for those cases where the name of the applicant for the execution of the decree does not appear as a decree-holder in the decree and he bases his right to execute the decree on the ground that the I interest of one or more of the decree-holders ''has been assigned to him in writing, or transferred to him by operation of law.

In the present case the decree which is sought to be executed is not the prelimnary decree for mesne profits (if one may use that expression) but the final decree which has been passed by the Court under Order 20, Rule 12, Clause (2). The transfer in favour of Chandrika Prasad was made not after ''the final decree but before it, with the'' result that Chandrika Prasad is executing the present decree as a decree-holder and I not as a person whose name has been substituted in place of that of the original decree-holder under Order 21, Rule 16.

In these circumstances it appears to me that Prov. 2 to Order 21, Rule 16 has no application and the objection of the appellant was rightly dismissed by the learned Subordinate Judge. I would therefore dismiss this appeal with costs.

Agarwala, J.

I agree.