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1922 Supreme(SC) 19
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD PHILLIMORE, SIR JOHN EDGE, AND MR. AMEER ALI.
MAHARAJA SIR MANINDRA CHANDRA NANDI - Appellant
Versus
RAM LAL BHAGAT - Respondents
On Appeal from the High Court at Patna.
Decided On : April 3, 1922.
Solicitors for appellant: Watkins & Hunter.
A lessee appointed during the pendency of a suit for possession is not a representative of the defendant under Order XXII, Rule 10 of the Code of Civil Procedure. Liability for independent trespass cannot be adjudicated in execution proceedings under Section 47, requiring a separate suit.
Headnote:(A) Code of Civil Procedure, 1908 - Section 2(12), Section 47, and Order XXII, Rule 10 - Mesne profits - Execution of decree - Joinder of parties by devolution of interest - A lessee of the defendant during the pendency of a suit for possession cannot be joined as a party under Order XXII, Rule 10 to account for profits or damages. The liability of a lessee for removing minerals is an independent liability as a trespasser and not a liability devolved from the original defendant. (Paras 15-20)
(B) Code of Civil Procedure, 1908 - Section 47 - Scope of execution proceedings - Questions relating to the execution, discharge, or satisfaction of a decree are limited to parties to the suit or their representatives. A third party who commits a separate trespass cannot be brought into execution proceedings; such claims must be pursued through a separate suit. (Paras 21-23)
Facts of the case:
Plaintiffs obtained a decree for possession of land and an inquiry into mesne profits. During the pendency of the original suit, the defendant had leased the land to a third party for mining. Following an inquiry into profits, the plaintiffs sought to add the lessee as a party to the suit to compel an accounting of profits made from mining, asserting that the lessee was a representative of the defendant.
Findings of Court:
The court found that the lessee's liability for removing minerals was a direct result of their own actions as a trespasser and did not constitute a devolution of interest from the original defendant. Consequently, the lessee could not be joined under Order XXII, Rule 10.
Issues: Whether a lessee of the defendant during the pendency of a suit for possession can be added as a party under Order XXII, Rule 10 of the Code of Civil Procedure to account for profits, and whether such a question can be determined in execution proceedings under Section 47.
Ratio Decidendi: Order XXII, Rule 10 applies only to the devolution of interest. A lessee's liability for trespass is independent of the original defendant's liability. Joining a third party in execution proceedings for their own independent acts would be unjust and is not permitted under Section 47, which is restricted to parties to the suit or their representatives.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
-
civil procedure code
-
joinder of parties
- devolution of interest
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execution of decrees
- mesne profits
- section 47 cpc
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joinder of parties
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civil procedure code
-
tort
- trespass to land
Judgement
Appeal (No. 109 of 1919) from an order of the High Court at Patna (November 16, 1916) reversing an order of the Additional Subordinate Judge of Hazaribagh.
By a decree of the High Court at Calcutta made on May 15, 1913, the present respondents were decreed possession of six villages. During the pendency of the suit the defendant had leased two of the villages to the present appellant for the purpose of mining for mica. In execution of the decree there was an inquiry as to mesne profits, and by the order now appealed from the appellant had been joined as a party to the suit. The facts of the case and the terms of the orders made appear fully from the judgment of the Judicial Committee.
1922. Feb. 27. De Gruyther K.C. and Ramsay for the appellant. The appellant cannot be made a party to the suit under Order xxii., r. 10. The decree being executed directs an inquiry as to mesne profits only, and the appellant is not a necessary party to that inquiry as the mesne profits cannot be recovered from him. Even if he were liable in damages, they could be recovered from him only by a separate suit in which the cause of action would have been different from that in the present suit. Sect. 47 of the Code applies only to questions between the parties to a suit or their
Law Rep. 49 Ind. App. 220 ( 1921- 1922) Maharaja Sir Manindra C handra V. Ram Lal Bhagat
79
representatives. [Reference was also made to Prosunno Coomar Sanyal v. Kasi Das Sanyal (( 1892)
L. R. 19 I. A. 166.); Ganapathy Mudaliar v. Krishnamachariar (( 1917) L. R. 45 I. A. 54.) ; Midnapore Zamindari Co. v. Naresh Narain Roy (( 1911) I. L. R. 39 Cal. 220.); Code of Civil Procedure (Act. V. of 1908), s. 2, sub-s. 12 ; and Code of Civil Procedure (Act XIV. of 1882), ss. 244, 372.] The respondents did not appear.
April 3. The judgment of their Lordships was delivered by
LORD PHILLIMORE. The present respondents brought as plaintiffs on April 15, 1907, a suit against Raja Makund Sahi to recover possession of six villages and jungle which they claimed. The Raja defended the action, which in due course came on for trial, and on September 21, 1908, the Court of first instance decided against the plaintiffs, and dismissed the suit. Just one year afterwards, on September 21, 1909, the Raja gave a lease of a term of years of the right of mining for mica, and otherwise exploiting the jungle, to the present appellant, whose case is that he had not notice of the pending litigation.
The unsuccessful plaintiffs appealed to the High Court, which on May 15, 1913, reversed the decision of the first Court and made a decree in favour of the plaintiffs ordering the Raja to put them into possession of the six villages and jungle, and it was further ordered " That the case be sent back to the lower Court " (inter alia) " to take an account of the mesne profits to which the plaintiffs-appellants are entitled for the three years prior to the institution of the suit, and also for the period thereafter till the delivery of possession or the expiration of three years from this date, whichever event happens earlier."
When the case was accordingly remitted to the Court of first instance, a commissioner or amin was appointed to make the necessary inquiry, and on August 22, 1914, he made his report.
On January 2, 1915, the Subordinate Judge recorded that the parties did not object to the report of the amin and that it might therefore be accepted, and he ordered " that the suit be decreed finally ; that the amins report be considered to be a part of the decree ; and that the plaintiffs do recover possession with mesne profits, as determined by the amin, and the costs of this suit from the defendant with interest at 6 per cent, per annum/ In this way the suit came to its natural termination.
It happened, however, that the amin took a somewhat unusual course in conducting the inquiry which led to his report. When inquiring into the mesne profits he first of all ascertained the rents which the Raja h
