Sundar Mahton and Others vs Mt. Rajhari Kuer and Others

Wort, J.—The appellant appeals from a decision of the learned District Judge in which he decided that a certain application for ascertainment of mesne profits was not barred by limitation and it is against this appeal that a preliminary objection is taken. All that need be said at this stage of the proceedings is that the application for ascertainment of mesne profits resulted from the success of the defendant in an action for possession of property in the High Court, that is to say, that the decree for possession which was given by the trial Court to the plaintiff was set aside in the Court of appeal and ultimately that decision was affirmed by this Court. After that there was an application for restitution of the property and then an application for ascertainment of mesne profits.

I am anxious to make it clear that I am not deciding that the one application arose out of the other or that there was or was not as the case might be an order for ascertainment of mesne profits in the order which was made on the application for restitution. I am particular in this respect as the final determination of the question may depend upon certain facts with regard to this point which are not now before us and make it impossible for us to express any view. The learned Judge as I have stated came to the conclusion that the application in those circumstances was not barred by limitation.

The preliminary objection which is now taken is that no appeal lies to this Court in those circumstances. It is not seriously denied, nor could it be denied that had the decision been the other way, namely that the Judge had decided that the application was barred by limitation then his order would have finally decided all the rights of the parties and would have been a decree and would therefore have been appealable. But it is contended that different considerations apply when the decision on the question of limitation was in favour of the applicant for mesne profits; that it is merely an order on an interlocutory matter, or on a preliminary objection and therefore does not dispose of the rights of the parties; it is therefore not appealable.

Now for this point Section 2, Civil P.C., is referred to, and the question which arises is whether the order of the District Judge was a decree or not or whether it came within the second part of Sub-section (2), Section 2. That Sub-section reads:

Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include etc.

The matter may be viewed from two aspects. It is contended by Mr. Mitter on behalf of the appellant that this was a determination of a question u/s 144. The alternative might be, as I understand the argument of Mr. Mitter that is his suggestion, that it is a decree and therefore coming under the first part of Sub-section (2) is appealable. Section 144 provides:

Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders including orders for the refund of costs and for the payment of interest, damages, compensation and mesne Profits, which are properly consequential on such variation or reversal.

Now a mere reading of that section clearly shows what the jurisdiction of the Court under the section is. The question which has to be determined is whether it can be said that the Court deciding upon a preliminary objection that the application is barred by limitation is the determination of any question u/s 144. In my judgment such an argument cannot possibly be supported. The question of limitation does not arise u/s 144 at all; it is a matter which may be incidental to an application u/s 144, but in no sense of the word is the determination of that matter one of those questions the jurisdiction to decide which is given u/s 144. It might be asked why if the determination in favour of the applicant of the question of limitation by way of preliminary objection is not a matter u/s 144, how can the determination of the very same question against the application be a determination of the question u/s 144.

It seems to me that the answer to that question is clear. By deciding the preliminary objection as regards limitation, although the Court does so incidentally, it does finally determine the matter between the parties and therefore necessarily, although by inference, decides that the applicant has no right for restitution or mesne profits, the jurisdiction to determine which the legislature has given to the Court u/s 144. In my judgment the preliminary objection to this appeal is clearly right and therefore this appeal should be dismissed with costs.

Fazl Ali, J.

I agree.