Nourang Rai vs Latif Chaudhri and Others

Mahmood, J.—On the 29th September 1885, the plaintiff-appellant''s claim for possession of certain property together with future mesne profits was partly decreed by the first Court. From the decree thus made an appeal was presented only by the plaintiff, and on the 16th December 1885, his appeal was decreed and so much of the decree of the first Court as had been passed against him was modified. Under an application for execution made on the 22nd May 1886, possession of the property was delivered to the decree-holder, appellant, on the 8th July 1886, and he was also awarded his costs.

The second application for execution was made on the 15th December 1887, and it was struck off on the 24th November 1888.

The third application for execution, which was made on the 3rd January 1889, was struck off on the 14th August 1889, in default.

The present litigation began with an application for execution made on the 23rd August 1889, which application relates solely to the question of future mesne profits, and upon the application being made the judgment-debtors objected, but their objections were disallowed by the first Court; but, upon appeal, the learned judge of the lower appellate Court, reversing the order of the first Court, allowed the objections of the judgment-debtors upon grounds which can best be expressed in his own words:--

The decree to be executed is the decree of the appellate Court and that decree, varying the decree of the Court of first instance, makes no provision for future mesne profits, such profits therefore cannot be claimed in execution.

Now in deciding this second appeal it is necessary to consider the effect of the Full Bench ruling in Shohrat Singh v. Bridgman I.L.R., 4 All., 376 as interpreted by the recent Full Bench ruling in Muhammad Sulaiman Khan v. Muhammad Yar Khan I.L.R., 11 All., 267, It is also necessary to bear in mind the ruling in Gopal Ram and Others Vs. Gobardhan Das, I am of opinion that the effect of these rulings is that the only decree which can be put into execution is the appellate decree of the 16th December 1885, and that, inasmuch as it was not a simple decree of affirmance, but a decree modifying the terms of the first Court, therefore, unless in the decree of the 16th December 1885, there was an order as to future mesne profits, no future mesne profits could be made the subject of execution. But the decree of the 16th December 1885, was not a decree of simple affirmance, but a decree modifying the original decree of the 29th September 1885, and this circumstance in my opinion distinguishes this case from the cases above referred to. After having fully heard the arguments, I am of opinion that the learned Judge has arrived at a correct conclusion, and I dismiss the appeal, but without any order as to costs, as the respondent is not represented.