The right to sue for mesne profits accrues upon the determination of a separate suit for declaration of tenancy rights, and the limitation period for such a suit is governed by Article 113 of the Limitation Act.

Headnote:
LIMITATION ACT - ARTICLE 51 - ARTICLE 113 - MESNE PROFITS - SUIT FOR MESNE PROFITS - ACCRUAL OF CAUSE OF ACTION - PRIVATE TREATY BETWEEN PARTIES - EFFECT ON LIMITATION - INTERPRETATION OF COURT ORDER - APPLICATION OF SECTION 15 - QUANTUM OF MESNE PROFITS - INTEREST ON MESNE PROFITS - COURT FEES - COSTS.
Fact of the Case:

Plaintiff, an auction purchaser, filed a suit for mesne profits for a period of 11 years, except the last three years, against the defendant, who was in possession of the property as a subsequent mortgagee. The defendant claimed tenancy rights and filed a suit for declaration of tenancy, which was dismissed by the trial court and the appellate court. The Supreme Court also dismissed the defendant's appeal. The trial court granted mesne profits for a period of three years, limited by Article 51 of the Limitation Act.
Finding of the Court:

The court held that Article 51 of the Limitation Act, which provides a three-year limitation period for suits for mesne profits, was not applicable in this case. The court interpreted the private treaty between the parties, which was incorporated into a court order, as postponing the filing of the suit for mesne profits until the determination of the defendant's claim of tenancy rights. The court held that the right to sue for mesne profits accrued only when the Supreme Court finally dismissed the defendant's claim. The court also held that section 15 of the Limitation Act, which provides for the exclusion of time during which the institution of a suit is stayed by an order of the court, did not apply in this case because the court order did not stay the filing of a suit for mesne profits.
Issues: 1. Whether Article 51 of the Limitation Act applies to a suit for mesne profits where the right to sue accrues upon the determination of a separate suit for declaration of tenancy rights? 2. Whether the private treaty between the parties, which was incorporated into a court order, postponed the filing of the suit for mesne profits until the determination of the defendant's claim of tenancy rights? 3. Whether section 15 of the Limitation Act applies to exclude the time during which the institution of a suit is stayed by an order of the court, even if the order does not specifically stay the filing of a suit for mesne profits?
Ratio Decidendi: 1. Article 51 of the Limitation Act does not apply to a suit for mesne profits where the right to sue accrues upon the determination of a separate suit for declaration of tenancy rights. 2. The private treaty between the parties, which was incorporated into a court order, postponed the filing of the suit for mesne profits until the determination of the defendant's claim of tenancy rights. 3. Section 15 of the Limitation Act does not apply to exclude the time during which the institution of a suit is stayed by an order of the court, even if the order does not specifically stay the filing of a suit for mesne profits.
Final Decision: The court allowed the appeal and held that the plaintiff was entitled to recover an additional sum of Rs. 8,00,000/- as mesne profits, together with interest at the rate of 6% per annum from the date of the trial court judgment till realization. The plaintiff was also directed to pay the necessary court fees on the amount of Rs. 8,00,000/- in the trial court.

JUDGMENT - VAZE V.V., J.: - “The Cheshire Cat vanished quite slowly, beginning with the end of the tail and ending with the grin, which remained some time after the rest of it had gone”. Such was the 'Alice in Wonderland' story of Kumudini Shah an auction purchaser, who purchased a property formerly known as 'Globe Theatre' and surrounding buildings, as well as a three storeyed building known as 'Globe Chawl, situate in City Survey Nos. 18 and 19-A, Shukrawar Peth, Poona which has subsequently been numbered as 1100 and 1101, Budhwar Peth, Poona. Shah waited for some eleven years to get possession of the property and when she got it, found that mesne profits for all those years except the last three have vanished like the Cheshire Cat.

2. This property, along with other, formed the subject matter of a Civil Suit No. 82 of 1952 in the Court of Civil Judge, Senior Division, Poona. This suit was filed by a mortgagee against the mortgagors and other subsequent mortgagees for foreclosure and realisation of the debt by sale of the mortgaged property. Punamchand Shrichand the mortgagee obtained a preliminary decree on 21st November, 1952. One K.M. Mody was also joined as Defendant No. 10 to the suit as he was a subsequent mortgagee. Punamchand Shrichand proceeded to obtain a final decree and, as none of the mortgagors or subsequent mortgagees could pay the decretal amount. Punamchand Shrichand filed Special Darkhast No. 1 of 1954, in the Court of Civil Judge, Senior Division, Poona, for realisation of the amount by sale of the mortgaged property. Even though the Court granted indulgence for payment of the dues the same could not be paid and finally the mortgaged properties were put up to Court auction. The present plaintiff Kumudini Shah came to the scene for the first time as she purchased the property on 6th August 1957. Objections were preferred for setting aside the sale but were dismissed finally by this Court on 2nd December 1960. With the final dismissal of all objections by the High Court on 2nd December, 1960, a sale certificate was granted to the plaintiff who moved “C” Application No. 285 of 1957 for possession. The executing court gave symbolic possession of some portion of the properties purchased in the auction. When the plaintiff prayed for Khas possession of the property which was in occupation of K.M. Mody who was joined as Defendant to the suit as a subsequent mortgagee, her prayer was granted by the executing Court. K.M. Mody, being aggrieved by the order, challenged the same in Revision Application No. 1508 of 1958 before this Court contending that he was a tenant of the property. On 27th February 1961, parties came to terms and a learned Single Judge of this Court passed the following order in the revision proceedings wherein Mody had sought setting aside of the order of the Civil Judge, Senior Division, Poona, in the execution proceedings:

“The petitioner and the respondent having settled the disputes between them and the terms of which have been reduced to writing signed by the Counsel of the parties and put on record of this case, the Court by consent sets aside the order passed by the Civil Judge (S.D.) Poona, and passes the following consent order in terms thereof:

1. By consent judgment and order dated the 16th August 1958 in Civil Application No. 328/57 passed by Shri V.V. Ghotge, Jt. Civil Judge (Senior Division) Poona, set aside.

2. The petitioner agrees to file within 6 weeks from the date hereof a suit in an appropriate Civil Court in Poona against the respondent for declaration of his rights to continue in possession as a tenant or statutory tenant or otherwise of the property and the premises herein and to protection of the Rent Act.

3. The respondent hereby agrees and undertakes not to interfere with the possession and quiet enjoyment of the property and premises and not to demand or recover possession or to take steps or proceedings to recover possession of the said property and premises and not to appl

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1984 Supreme(Bom) 375

IN THE HIGH COURT OF BOMBAYDharmadhikari C.S. Vaze V.V., JJ.Kumudini Ramdas Shah .... Appellant.VersusK.M. Mody (Dead) by L.Rs..... Respondents.First Appeal No. 269 of 1977, decided on 21-12-1984.Advocates appeared :M.V. Paranjape with D.K. Ghaisas, for appellant.C.R. Dalvi, for respondents.

The right to sue for mesne profits accrues upon the determination of a separate suit for declaration of tenancy rights, and the limitation period for such a suit is governed by Article 113 of the Limitation Act.

Cases Referred (1)