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1959 Supreme(Pat) 57
PATNA HIGH COURT
Raj Kishore Prasad, J.
Munshi Banesh Prasad
Versus
Jalpa Shankar Varma
Appeal from Original Decree No. 175 of 1955 ;
Decided On : APRIL 24, 1959
A claim for mesne profits which is not allowed in express terms or by implication in the judgment or decree is deemed to have been refused.
Headnote:
MESNE PROFITS - ASCERTAINMENT - OMISSION OF DIRECTION IN DECREE - EFFECT - CLAIM DEEMED REFUSED - CODE OF CIVIL PROCEDURE, 1908, ORDER 20, RULE 12(1)(C), SECTION 11, EXPLANATION V.
Fact of the Case:
Plaintiffs filed a suit for possession and mesne profits. The trial court dismissed the suit. On appeal, the High Court allowed the plaintiffs to recover possession of some lands but did not mention mesne profits. The plaintiffs applied for ascertainment of mesne profits, which was allowed by the trial court. On revision, the High Court set aside the order of the trial court.
Finding of the Court:
The High Court held that the plaintiffs were not entitled to get mesne profits ascertained as the claim for mesne profits was not allowed in express terms or by implication in the judgment or decree.
Issues: Whether the plaintiffs were entitled to get mesne profits ascertained when the claim for mesne profits was not allowed in express terms or by implication in the judgment or decree.
Ratio Decidendi: 1. Where a decree is silent on the subject of mesne profits, mesne profits cannot be added in the course of execution. 2. When a claim for mesne profits is made and refused, it is not open to the plaintiff to ask for an ascertainment of mesne profits. 3. When no claim for mesne profits is specifically made by the plaintiff and the Court awarding possession necessarily and intentionally omits any reference to a claim for mesne profits, it is not open to the plaintiff to say that the suit is still pending and he is entitled to make a claim for future mesne profits at a time when a large part of the claim is already barred by time.
Final Decision: The appeal was dismissed.
Raj Kishore Prasad, J.
1. This appeal by the plaintiffs is from the order of the court below rejecting their application for ascertainment of mesne profits on the ground that there was no direction in the decree for any such enquiry. There was no direction either in the judgment, or in the decree for ascertainment of mesne profits.
2. The original plaintiff, Akhauri Nandkishore Lal alias Nandu Lal, who, after his death, was substituted by the present plaintiff, Munshi Banesh Prasad, instituted a suit for possession and mesne profits. In paragraph 29 of the plaint, amongst the reliefs claimed by the then plaintiff, was relief No. 3, which was to the following effect:
"A decree may be passed in favour of the plaintiff against the defendants for the future mesne profits from the date of institution of the suit till the delivery of possession, on the receipt of additional court-fee."
3. This suit was instituted on the 13th February, 1943. The suit was, however, dismissed 011 the 17th May, 1943, and, ultimately the matter came up in second appeal to this Court--Second Appeal No. 1502 of 1956--at the instance of the present plaintiffs-appellants. The appeal was disposed of by V. Ramaswami, J. sitting singly, on the 27th October, 1948. The appeal of the plaintiffs-appellants was allowed in part in the following terms:
"As regards the 12 dams of share of Mahuawan conveyed by five documents, Exts. A-2 (b), A-2(d), A-2 (e), A-2(f), and A-2(g), the appeal must succeed and the plaintiffs will be entitled to a decree for recovery of possession of this share of this milkiat."
4. The decree, which followed this judgment, also provided that:
"The decree of the court below be and the same is hereby modified to this extent that the plaintiffs arc entitled to a decree for recovery of possession of 12 dams share of Mahuawan conveyed by five documents, Ext. A-2(b), A-2(d), A-2(e), A-2(f) and A-2(g)".
5. It is, therefore, manifest that the relief of the plaintiffs claiming mesne profits was not allowed in specific terms nor was it disallowed expressly. As a matter of fact, there is no order, one way or the other, on the question of mesne profits claimed by the plaintiffs in their suit. Accordingly, in the decree itself, as required by Order 20 Rule 12 (1) (c) of the Code of Civil Procedure there is no direction directing an enquiry as to mesne profits.
6. In spite of the absence of any express direction in the judgment or decree granting the plaintiffs their claim for mesne profits, they applied under Order 20 Rule 12, Code of Civil Procedure, for ascertainment of mesne profits. A commissioner was appointed, and, his report was confirmed on the 17th April, 1951. On the 16th May, 1951 the respondent made an application for vacating the above order, which was, however, dismissed. Ultimately the matter was brought to this Court by the respondent 1 in its revisional jurisdiction, which was registered as Civil Revision No. 608 of 1952. It was disposed of by Rai, J. on the 1st May, 1953 in the following terms:
"It is not necessary for me at this stage to discuss the points raised on behalf of both the parties as the decree-holder has agreed that the application of the petitioner (that is, the present respondent) filed before the trial court be allowed and the order passed by the trial court dated 17-4-51 be set aside. The petitioner will now be at liberty to file objection to the report of the commissioner. With these observations the application is disposed of."
7. When the matter went back, the objection of respondent 1, who was defendant 3 to the suit was allowed by the learned Subordinate Judge and he held that in the absence of a direction in the decree, in terms of Order 20 Rule 12 (1) (c), of the Code of Civil procedure and in the absence of any indication in the judgment itself the plaintiffs-appellants were not entitled to get any mesne profits, and, therefore, there could be no ascertainment thereof. It is against this order that the pr
