Puthiyapandikasalayil Abdulla Koya vs Kallumpurath Kanaran (dead) and Others

Spencer, J.—The plaintiff sued in O.S. No. 150 of 1906 for redemption and possession of two items of property. He obtained a decree on

March 9th, 1907 and was put into possession of the property on December 5th, 1908. He brought the suit on June 25th, 1911 to recover

compensation for damages done by the defendants both prior to the decree in O.S. No. 150 of 1906 and between the decree and his entry upon

the land.

Under Article 36 of the Indian Limitation Act he had two years from the date when the alleged damage was caused to institute his suit, and he is

now out of time unless he is allowed u/s 14 to deduct the time between November 6th, 1903 and June 22nd, 1910 spent in prosecuting execution

proceedings to obtain the same relief.

As regards the damages caused before the passing of the aforesaid decree, the lower courts were clearly right in refusing to let the plaintiff take

advantage of the previous execution proceedings for extending the time u/s 14, for the reason that in those proceedings the plaintiff did not ask to

be compensated for loss sustained before the decree but expressly reserved his right to make that the subject of a separate application.

As regards the claim on account of damages alleged to have been caused after the decree and before possession was delivered to the plaintiff,

the District Munsif in the execution proceedings refused to award compensation under this head as he did not believe the plaintiff''s allegations to

be true. In appeal the Subordinate Judge did not pronounce on the merits of this claim, and he held that the plaintiff''s proper remedy was to

proceed not by way of execution but by a regular suit and dismissed the appeal. The plaintiff did not appeal against that order and we are not now

sitting in an appeal upon it so as to be in a position to decide whether the plaintiff should have been given the relief sought by him in the Subordinate

Judge''s Court. We have only to see whether those proceedings were prosecuted in good faith in a court which from defect of jurisdiction or other

cause of like nature was unable to entertain it.

Now Section 6 of the Malabar Compensation for Tenants Improvements Act declares that in a suit brought for ejectment of a tenant in Malabar

the Court executing the decree shall determine the amount due for compensation for improvements made subsequent to the date of valuation

adopted in the decree "" as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent or otherwise in respect of the

tenancy"" and the court shall vary the decree accordingly. u/s 5, the tenant to whom the compensation is due continues to hold as a tenant until he is

ejected. I think the intention of the legislature is clear enough. It was intended that there should be complete and final settlement between the lessor

or mortgagor and his lessee or mortgagee of all that is due from the former to the latter and from the latter to the former up to the date when the

transfer of possession takes place and that the subsequent re-opening of accounts between parties whose legal relationship has ceased should be

avoided.

I also think that the words "" any sum of money accruing due for rent or otherwise in respect of the tenancy"" are wide enough to include damages

for injury done by the tenant to his mortgagor''s or lessor''s property, even though the money may not strictly be said to accrue due until the value

of the damage has been ascertained. The 4th clause of this section makes such matters to be questions falling u/s 47 of the Code of Civil

Procedure. In this view I consider that the executing court was not incompetent to entertain the application to award compensation to the decree-

holder for damages done to his property after the passing of the decree, and therefore that Section 14 of the Limitation Act does not operate in this

case to extend the time. The suit is barred. The second appeal should be dismissed with costs.

Sadasiva Aiyar, J.

I agree. I wish to add, however, a few words on a question which though not raised in the Lower Courts or in the grounds of the memorandum

of Second Appeal, was argued before us.

Mr. Govinda Marar, Vakil for the appellant, argued (1) that the Subordinate Judge having in Exhibit P. (the decision passed in appeal from the

order in E.P. No. 851 of 1908) decided that the question of compensation for damages due to the plaintiff both prior to and after the decree in

O.S. No. 150 of 1906, could not be considered in execution proceedings, the defendants are estopped from contending in this suit that the

executing court was not incompetent to consider that question and (2) that, so being estopped, the time taken in that incompetent court must be

deducted u/s 14 of the Limitation Act at least as regards the relief of compensation for acts done subsequent to the said decree.

As regards the first, it has been no doubt, held in Mallika Dasi v. Makham Lal (1905) 2 C.L.J. 389, Ramgati Mohurer v. Pran Hari Seal (1905)

3 C.L.J. 201 and Sashi Bhusan Mandal v. Rai Sabak Mandal (1914) 24 I.C. 181 that a party cannot, as a rule, be allowed to "" blow hot and cold

in pleadings in two successive proceedings involving the same question of rights and if by setting up a particular defence, he has induced the court

to decide against his adversary in the first proceeding, he cannot in a subsequent proceeding based on his own contention in the former proceeding

be allowed to go against that contention. But it is doubtful whether this doctrine can be availed of as regards pleas based on abstract questions of

law. Decisions on abstract questions of law are not res judicata between the same parties and if a party can be allowed to "" blow hot and cold

(as it is called) on abstract questions of law, I do not see why he should not argue against his own contention on a pure abstract question of,

procedure law in order to defeat his adversary who, instead of appealing against the wrong decision of the court in the former proceeding on a

question of procedure, instituted the fresh proceeding, accepting the former erroneous decision as correct. However, there are cases see

Jagannada Rao v. Kurmayya (1907) 17 M.L.J. 314, Manpal v. Sahib Ram ILR (1905) All. 544, which hold that even legal contentions as to

procedure ought not to be varied in a subsequent proceeding relating to the same matter. Assuming then that a party ought not to be allowed to

raise inconsistent contentions as to procedure in successive proceedings, provided that the relief sought by the other party was substantially the

same in the prior and the subsequent proceedings, there is nothing in Exhibit P to show that it was on the plea of the defendants that the

Subordinate Judge decided against the plaintiff on the question of law whether the executing Court was or was not competent to go into the

question of damages for waste. The first contention therefore fails.

As the first contention has failed, it is unnecessary to express a final opinion on the 2nd contention. I shall, therefore, merely notice the

arguments contra thereon. The cases quoted already only allow the plaintiff in the subsequent proceeding to adopt as correct the contention which

was put forward by the opposite party and which was accepted by the court so as to prevent the opposite party from arguing against his own

previous contention. But they do not deal directly with the question whether the time taken in the first or infructuous or unsuccessful proceeding

could be deducted for the purposes of calculating the limitation period for the second proceeding and whether the opposite party is estopped also

from contending even in arguing this question of limitation that the first proceeding was in a competent court, the question of the court''s

competency being only a subsidiary question of law which has to be considered for arriving at a decision on the main question of limitation. It is,

however, as I said before, unnecessary to express a final opinion on this matter.