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1960 Supreme(MP) 291
High Court Of Madhya Pradesh
P. K. Tare, J.
INDERAM MANSARAM - Appellant
Versus
RAMDIN BHAGWANT PRASAD - Respondents
Misc. Second Appeal 21 Of 1960
Decided On : 09/23/1960
J.P.Dwivedi, R.K.Pandey
Section 144 of the Civil Procedure Code is applicable to cases where a party is deprived of the benefit of an order or decree of a Court on account of a wrong reversal or variation by the appellate Court, which wrong appellate decree is reversed or varied by the next appellate Court or the final Court of appeal.
Headnote:
CIVIL PROCEDURE CODE - SECTION 144 - RESTITUTION - MESNE PROFITS - APPLICABILITY - INTERPRETATION - EXECUTION OF DECREE - STAY ORDER - ADDITIONAL EVIDENCE - ADMISSIBILITY.
Fact of the Case:
The appellants obtained a decree for possession of suit fields and executed it. The respondents obtained a stay order from the first appellate Court, which was later reversed by the High Court. The appellants filed an application for execution of the decree and claimed mesne profits for the period during which they were unable to take possession due to the stay order. The trial Court granted the mesne profits, but the first appellate Court reversed the order, holding that Section 144 of the Civil Procedure Code was not attracted.
Finding of the Court:
The High Court held that Section 144 of the Civil Procedure Code was applicable to the case and that the appellants were entitled to mesne profits for the period during which they were unable to take possession due to the stay order. The Court also held that additional evidence could be admitted in the interest of justice.
Issues: 1. Whether Section 144 of the Civil Procedure Code was applicable to the case. 2. Whether the appellants were entitled to mesne profits for the period during which they were unable to take possession due to the stay order. 3. Whether additional evidence could be admitted in the interest of justice.
Ratio Decidendi: 1. Section 144 of the Civil Procedure Code is applicable to cases where a party is deprived of the benefit of an order or decree of a Court on account of a wrong reversal or variation by the appellate Court, which wrong appellate decree is reversed or varied by the next appellate Court or the final Court of appeal. 2. The appellants were entitled to mesne profits for the period during which they were unable to take possession due to the stay order, as they were deprived of the benefit of the decree of the trial Court, which was ultimately upheld by the High Court. 3. Additional evidence can be admitted in the interest of justice, where the Court feels the necessity of admitting the same for the purpose of doing complete justice between the parties.
Final Decision: The appeal was allowed, the order of the first appellate Court was set aside, and that of the trial Court was restored subject to the modification that the mesne profits to be paid by the respondents to the appellants shall be Rs. 1984/- in stead of Rs. 2433/9/-.
( 1 ) THIS appeal is by the decree-holders against the order, D/- 16-12-1939 passed by Shri S. M. Afzal, Additional District Judge. Durg, in Miscellanous Civil Appeal No. 7 of 1959, reversing the order, D/- 31-7-1959, passed by Shri J. D. Shrivastava, Civil Judge, Class II, Bemetara, in Miscellaneous Judicial Case No. 45 of 1958.
( 2 ) ONE Bhagwatiprasad, since deceased (who was defendant 4 in the Civil Suit) mortgaged with the original fifth defendant, Ramjilal and his brother, Rainkrishna, his. 4 annas share in village Andhiyarkhor on 15-10-1923, The whole of the Village share relating to four annas interest excluding cultivating rights in sir lands was the subject-matter of the mortgage for a consideration of Rs. 3000/- in favour of Ramjilal and his brother, Ram'krishna. On the basis of the deed, the mortgagees obtained a decree for foreclosure in Civil Suit No. 75 of 1930. The decree-holders were in possession of the foreclosed property till they sold the same to the present appellants on 5-4-1942 by a registered sale deed. The sale deed recited that all the foreclosed property, along with khudkast lands appurtenant to the village share was sold. The present appellants claimed to have obtained possession of the village share, including khudkast lands from the mortgagees They alleged that they were dispossessed in the year 1951-52.
( 3 ) THE defence of the present respondents was a denial of all the allegations of the plaintiffs. They claimed to be in possession of the suit lands adversely to the plaintiffs and their predecessors, namely, Ramjilal and Ramkrishna.
( 4 ) THE Trial Judge, upholding the plaintiff's claim, decreed the suit for possession, while the first appellate Court reversed that decree. In Second Appeal No. 832 of 1955 filed by the plaintiffs (present appellants), this Court, by judgment, D/--22-7-1958, allowed the appeal and restored the decree of the trial Court.
( 5 ) THE appellants, after obtaining a decree from the trial Court, filed an application for execution on 21-6-1954. On 22-6-1954, the defendants, applied to the trial Court for stay under Order 41, Rule 5 (3) of the Civil Procedure Code. Accordingly, the execution was stayed till the defendants obtained a stay order from the first appellate Court, On 17-7-1954, the first appellate Court granted a stay order in favour of the defendants. The same was communicated to the trial Court on 23-9-1954. Ultimately the first appellate Court allowed the appeal on 21-9-1955, whereby the plaintiff's suit was dismissed.
( 6 ) AFTER the plaintiffs' claim was decreed in Second Appeal No. 832 of 1955, they applied for execution of the decree. Accordingly, possession of the suit fields was delivered to them on 22-8-1959. In the execution proceedings, the plaintiffs claimed that they were entitled to restitution regarding the mesne profits accruing from the year 2953-54, that is, the filing of the suit on 2-51953 till 22-8-1959, that is delivery of possession of the property. They contended that the proceedings for execution relating to delivery of possession of the property were stayed due to the stay order passed by the first appellate Court; and, subsequently, the plaintiffs "were prevented from executing the decree, as the same had been set aside by the first appellate Court. As the decree of the first appellate Court had been set aside, the plaintiffs were entitled to claim restitution under Section 144 of the Civil Procedure Code in respect of mesne profits for such period although they had not claimed any mesne profits in the suit.
( 7 ) THE respondents" contention was that the remedy of the decree-holders was to file a separate unit for mesne profits; particularly, when no mesne profits had been claimed in the suit itself. Therefore, they alleged that it was only the decree of the High. Court that was executable and the possession of the property could be delivered in execution of that decree. But, in no case, was Section 144 of the Civil Pr
