Naurang Singh vs Teja Singh and others

Muni Lal Verma, J.—The circumstances giving rise to this appeal, may be, briefly, stated as under:

Teja Singh and his two brothers Basant Singh and Jagir Singh, obtained a decree for possession of land measuring 70 Kanals 3 Marias against Gurdeep Singh on July 19, 199(sic) from the Court of Subordinate Judge, First Class, Ropar. Aggrieved by the said decree, Gurdeep Singh prefrred appeal on November 25, 19(sic) which was heard by the learned Additional District Judge, Ropar. On an application moved by Gurdeep Singh, the learned Additional District Judge passed order on February 20, 1970 therein after referred to as the stay order) to the effect that dispossession of Gurdeep Singh from the lard would be stayed during the pendency of the appeal on furnishing security in personal bond with two sureties for payment of mesne profits in the sum of Rs. 10,000/- per year each to Teja Singh in the event of dismissal of the appeal. In pursuance of that order, Hazura Singh and Naurang Singh furnished surety bonds for payment of mesne profits extending to Rs. 10,000/- per year each, to Teja Singh and his brothers in the event of dismissal of the appeal. These surety bonds were executed by them on March 2, 1970. The appeal preferred by Gurdeep Singh was ultimately dismissed on October 9, 1972.

Teja Singh and his two brothers took out execution of the decree on October 18, 1972, and they succeeded in obtaining possesion of the land on October 20, 1972 They moved an application u/s 145 read with Section 47, Code of Civil Procedure, on November 22, 1972 for recovery of mesne profits for nine years, i.e , from Rabi 1964 to Kharif 1972 at the rate of Rs. 10,000/- per year, i e. Rs. 90,000/- in all, from Gurdeep Singh and his two sureties, Hazura Singh and Naurang Singh, in the executing court. All of them, viz., Gurdeep Singh, Hazura Singh and Naurang Singh contested the said application. The factum that Hazura Singh and Naurang Singh stood sureties for payment of mesne profits to the extent of Rs. 10,000/- per year each pending the appeal in the event of dismissal of the appeal, was admitted. The other material allegations were cont overted and it was pleaded inter alia that the application moved by Teja Singh and others for recovery of meane profits was not maintainable and was barred by time. Hence the said application was tried on the following issues:

(1) Whether the application for mesne profits is not maintainable ? O. P. Objector (D.O.)

(2) Whether the whole claim of mesne profits is not within limitation ? O.P. (JD)

(3) To what amount the decree holder is entitled to mesne profits ? OPDH.

(4) Relief.

The executing Court decided issues No. 1 and 2 against Gurdeep Singh, Hazu a Singh and Naurang Singh, and held under issue No. 3 that Teja Singh and his two brothers were entitled to recover mesne profits at the rate of Rs. 10,000/- per year with effect from July 9,(sic) 1969 when the decree for possession was recorded by trial Court upto October 20, 1972 When possession of the land had been taken by Teja Singh and his brothers and order to that effect was passed in their favour. Aggrieved by the said order, aurang Singh came to this Court in appeal.

4 Assailing the impugned order, Mr. P. S. Mann the Learned Counsel for the Appellant. has raised the following contentions:

(a) that the application moved by Teja Singh and his brothers u/s 145 read with Section 47, Code of Civil Procedure, for recovery of mesne profits was not maintainable, and the remedy available to them was by civil suit, and

(b) that mesne profits could not be allowed to Teja Singh and his brothers at the rate of Rs. 10,00/- per year, much less for the period beginning from the date of decree of the trial Court, and in no case up to the date of delivery of possession of the land.

According to Sub-rule (3) of Rule 5 of Order XLI, Code of Civil Procedure, security can be demanded by the Appellate Court for due performance of the decree that may eventually be passed against the Appellant. Security for any relief which is not subject of the suit wherein the impugned decree has been recorded cannot, in my opinion, be demanded under the said rule. In the suit, Teja Singh and his brothers did not claim mesne profits. Therefore, the first Appellate Court could not demand security for payment of mesne profits and the same could not be given under order XLI. Rule 5, Sub-rule (3). Code of Civil Procedure. But the first Appellate Court, in my opinion, had inherent jurisdiction u/s 151 of the Code of Civil Procedure, to demand security for payment of mesne profits from Gurdeep Singh when Ye bad applied for stay of his dispossession in execution of the decree. Hence, the stay order demanding security for mesne profits from Gurdeep Singh should be taken and deeemed to have been passed under inherent powers, u/s 151 of the Code of Civil Procedure. When the said order was passed u/s 151, Code of Civil Procedure, and the security bond was executed by the Appellant in pursuance thereof it (the security bond) could, in my opinion, be executed summarily in execution proceedings without having recourse to a frest suit. Similar view was taken in Ouseph Korathu v. Gopalan Nair AIR 1952 TC 237. No authority contrary to the proposition laid down in that judgment has been cited by Mr. Mann. In that view of the matter the application made by Teja Singh and his brothers for relisation of mesne profits from the Appellant and Others was maintainable in the executing Court apart from the provisions of Section 145, Code of Civil Procedure. Even, otherwise, the contention of Mr. Mann that the case in hard is not,covered by Section 145, Code of Civil Procedure, and the remedy of Teja Singh and his brothers was by way of suit only is not, in my opinion, sustainable. It is noteworthy that Section 145, Code of Civil Procedure, dispenses with the necessity of suit and enables the party for whose benefit the security has been given to enforce the security by executing proceedings in the same manner as if the surety was a party to the decree or order in respect of which security has been given. The relevant portion of the provisions contained in Clause (c) of Section 145, Code of Civil Procedure, is to the effect that:

Where any person has become I able as surety for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceding consequent thereon, the decree or order may be executed against him to the extent to which he rendered himself personally liable in the manner herein provided for execution of decrees.

The Appellant by executing the security bond had, in addition to charging his property, rendered himself personally liable to the extent of Rs. 10,000/- per year, in the event of failure of Gurdeep Singh''s appeal, for the period the appeal remained pending. The appeal preferred by Gurdeep Singh was dismissed on October 9, 1972. Therefore, the Appellant had become liable as surety to pay the mesne profits covered by the security bond furnished by him The said security bond was furnished in pursuance of the stay order. Therefore, Teja Singh and his brothers were entitled to enforce the aforesaid security bond by seeking execution of the stay order. The dipossession of Gurdeep Singh was stayed during the pendency of the appeal preferred by him against the decree recorded in the suit because the Appellant had furnished the security bond demanded by the stay order It was on account of the furnishing of the said security bond by the Appellant that Gurdeep Singh remained in possession of the land during the pendency of the appeal. The Appellant had. thus, enabled Gurdeep Singh to enjoy the usufruct from the land during the pendency of the apppeal and, therefore, it is not now open to him to resile and Contend that the stay order was irregular or that the executing court had no jurisdiction to enforce it along with the terms of the security bond which he (the Appellant) had undertaken to fulfil. True, Teja Singh and bis brothers could institute suit for recovery of mesne profits from the Appellant and the other surety, but at the same time their right to enforce the personal liability undertaken by the Appellant under the stay order in execution proceedings is not barred. The stay order imposed a condition on Gurdeep Singh to execute a personal bond and to furnish two sureties, each binding himself to pay mesne profits in the sum of Rs. 10,000/- per year in the event of dismissal of the appeal and it was in fulfillment of that condition that the Appellant had furnished the security bond. The appeal was continuation of the suit or at least the stay order has to be taken to have been passed in the proceedings which were consequential to the suit. The expression '' in the manner herein provided for execution of the decrees '' leaves no room for doubt that Section 145, Code of Civil Procedure, has provided for the enforcement of the surety''s liability by execution against him (the surety) of the order in connection with which the security was given. It is, thus evident that the case in hand is also covered by Clause (c) of Section 145, Code of Civil Procedure, the relevant portion has been reproduced above. The net result of the discussion above is that there is no merit in the contention (a) advanced by the Learned Counsel for the Appellant, and the same is overruled. The executing Court recorded correct finding on issue No. 1, and the same is affirmed.

The contention (b) raised by Mr. Mann has two limbs which are:

Firstly, that the amount to be payable by the Appellant as mesne profits had to be determined and without such determination he could not be asked to pay the same (mesne profits at the rate of Rs. 10,000/- per year, and Secondly, that the Appellant could not be made liable for mesne profits for any period prior to March 2, 1970 or for any period subsequent to October 9, 1972. In order to appreciate the said contention (b) of Mr. Mann, it is necessary to reproduce the relevant portion of the security bond furnished by the Appellant. Its certified copy has been produced by the Learned Counsel for Teja Singh and his brothers. Its second para which contains the undertaking given by the Appellant reads thus:

Therefore Naurang Singh son of Dasondha Singh caste Jat resident of village Rattangarh, Tehsil Ropar hereby furnish the said security and bind myself and my property of every sort for the payment of the mesne profits in the suit land up to the extent of Rs. 10,000/- per year if called upon to do so and in case appeal of Gurdeen Singh is dismissed. I promise to pay the said amount of mesne profits and to the extent of Rs. 10,000/- per year as found payable to the decree-holder-Respondents in case the appeal is dismissed. Hence this surety bond is executed this day 2nd March, 1950 (sic)at Ropar.

Laying emphasis on the expression "to the extent of Rs. 10,000/- per year as found payable to the decree-holder Respondents" appearing in aforesaid portion of the security bond, Ms Mann has been of the view that the Appellant had undertaken the liability to pay mesne profits up to the extent of Rs. 10,000/- which could be found payable by Gurdeep Singh. So according to him, the mesne profits have to be firstly determined payable for each year and the Appellant had undertaken the liability to pay the said mesne profits with a 1 imitation that his liability to pay the same would not exceed Rs. 10,000/. According to the ordinary rule of interpretation the intention of the executant, the aim and object for which a deed had been executed, are important maters which are halpful in construing the same or to arrive at the real meaning of a sentence or expression occurring therein. Intention of the the executant and also the aim and object for which a deed was execuded can be gathered from its language and the circumstances under which the same was executed. The stay order demanded two sureties and each surety was to undertake the liability to pay mesne profits in the sum of Rs. 10,000/- per year. So, the said order was definite respecting the amount of mesne profits to be paid by the surety. It was in pursuance of that order that the Appellant had furnished the security bord. It was on account of his furnishing the said security bond that Gurdeep Singh, as indicated above, had been able so reap the benefit from the land during the period he remained in its possession pending the appeal, therefore, the expression "to the extent of Rs. 10,000/- per year" occurring at two places in the portion of the security bond, reproduced above, and also at one place in its earlier portion, mean and the same were intended to mean by the Appellant that he would be liable to pay Rs. 10,000/- per year as mesne profits. The expression to the extent" in my opinion, means to the tune of. The expression "as found payable", occurring in the portion of the security bond, reproduced above and relied upon by Mr. Mann mean the period of which mesne profits were to be determined at the rate of Rs. 10,000/- per year. Such in my opinion, was the intention of the Appellant when he executed the security bond. Similar was the aim and object for which he had furnished the said security bond. To me, Mr Mann appears to have made futile attempt to wriggle out from the liability undertaken by the Appellant by misnter-preting the expression, referred above. The amount of mesne profits payable for one year was determined by the stay order passed by the Appellate Court. It could not therefore be re-determined by the executing Court. The Appellant bound himself by executing the security bond in pursuance of stay order to pay the said mesne profits at the rate of Rs. 10,000/- per year. So, he is unable to claim redetermination of the mesne profits payable yearly. As such, there is no merit in the first limb of the contention (b).

According to the security bond, the Appellant was bound to pay mesne profits at the rate of Rs. 10,000/- per year during the period the appeal remanded pending the expression "during the pendency of the appeal" occuring in the first portion of the security bond and in the stay order has been construed by Mr. Mann to mean the period between the date when the security bond was furnished, i e., March 2, 1970, and the date when the appeal was dismissed, i.e. October 9, 1972. He has been of the view that the liability undertaken by the Appellant by furnishing the security bond could be prospective and not retrospective, there too, I am unable to agree with him. An appeal has to be treated as pending from the date when it is instituted till the date when it is finally decided Therefore, the only construction of the expression of "during the pendency of the appeal" would be the period commencing with the date of its institution and ending with the date of its final decision. If the view of Mr. Mann is accepted and it is said that the liability of the Appellant under the security bond commenced from March 2, 1970 when he furnished the security bond and extended up to October 9, 1972 when the appeal was deccied, it would man that the liability undertaken by him extended to a partial period of pendency of the appeal. It would be cutting the liability under-by the Appellant to a shorter period. That, in my opinion, can neither be legal, nor permissible. The appeal wherein the Appellant had furnished the security bond was institiued on November 25, 1969(sic) and was finaily decided on October 9, 1972. Therefore, it is unquesrion nable that the said appeal remained pending from November 25, 1962 up to October 9, 1972 The stay order demanded security for payment of mesre profits for the period during which the appeal remained pending, and the Appellant had executed the security bond knowing well and with full awareness that he was under taking the liability to pay the mesne profits during the pendency of the appeal. There was nothing to preclude him, nor was there any bar, much less legal, for undertaking that liability, and the question that he could not render himself liable or payment of mesne profits retrospectively, does not arise.

As indicated above, the Appellant was liable to pay mesne profits at the rate of Rs. 10,000/- per year for the period commencing with November 25, 1969 when the appeal was instituted, up to October 9, 1972 when the said appeal was finally decided, therefore, the order of the executing Court suffers from the infirmity so far as it directs payment of the mesne profirs by the Appellant for the period prior to November 26,(sic) 1969, or for the period subsequent to October" 9, 1972. It is to that extent that the second Limb of the contention (b) prevails and necessitates modification of the impugned order. So, the finding on issue No 3 recorded by the executing Court is again correct except to the aforsaid extent, and I modify the said finding accordingly. Calculating arithmetically, the mesne profits at the aforesaid rate of Rs. 10,000/- per year for the period from November 25, 1969 to October 9, 1972, the amount comes to Rs. 28,740/-.

No other point has been urged before me and the finding recorded by the executing Court on issue No. 2 has not been challenged. The calim of Teja Singh and his brothers for mesne profits for the period from November 25, 1969 to October 9, 1972 is undisputably within time,

For the foregoing reasons, I find no merit in this appeal except to the extent of modification of the impugned order with regard to the period for which the mesne profits are to be paid by the Appellant.

Consequently, I partly allow this appeal, and direct the Appellant to pay Rs. 28,740/ as mesne profits to Teja Singh, Basta Singh and Jagir Singh), decree holders. In view of the peculiar circumstances of the case, and that the Appellant has some success, though not to a great extent, I leave them to bear their own costs.

It is added for the sake of clarity that the liability of Gurdeep Singh and that of Hazura Singh to pay the mesne profits are also reduced to the said amount of Rs. 28,740/-. Their liability and that of the Appellant are, however, distinct and separate, though the liability of the Appellant and that of Hazura Singh being sureties are co-extensive with the liability of Gurdeep Singh, judgment-debtor to pay the aforesaid amount.