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Vinayak Amrit, Deshpande Vs. Abaji Haibatrav - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom416
AppellantVinayak Amrit, Deshpande
RespondentAbaji Haibatrav
Excerpt:
decree - declaratory decree--execution--separate suit--mesne profits, meaning of--decree awarding mesne profits--construction - - the award of mesne profits, however to be computed, is something quite different from an award of a periodical payment in ceternum the very word 'mesne' implies a terminus ad quem as well as a quo, and the terminus in the absence of a special order is the date of the decree.west, j.1. the plaintiff in this case no doubt sought a decree which should award payment to him by the defendant in perpetuity of a certain part of the produce of the village of bichukli. but what was decreed by the court of first instance was that the plaintiff had a right to an annual payment from the defendant of produce to be estimated in the way therein prescribed. on appeal to this court, the decree was modified as to the determination of the relative proportional rights of the parties, and payment was ordered of mesne profits computed according to the principles thus laid down. this adjudication took place in 1878. it appears to have been used by the parties as a standard for the division of profits for some time afterwards, but as to the years 1882-84 a dispute arose, and the.....
Judgment:

West, J.

1. The plaintiff in this case no doubt sought a decree which should award payment to him by the defendant in perpetuity of a certain part of the produce of the village of Bichukli. But what was decreed by the Court of first instance was that the plaintiff had a right to an annual payment from the defendant of produce to be estimated in the way therein prescribed. On appeal to this Court, the decree was modified as to the determination of the relative proportional rights of the parties, and payment was ordered of mesne profits computed according to the principles thus laid down. This adjudication took place in 1878. It appears to have been used by the parties as a standard for the division of profits for some time afterwards, but as to the years 1882-84 a dispute arose, and the plaintiff sought to enforce his right under the decree by execution proceeding against the defendant. The Subordinate Judge has adjudged in favour of the plaintiff as judgment-creditor, but it does not seem possible to uphold his judgment. The award of mesne profits, however to be computed, is something quite different from an award of a periodical payment in ceternum The very word 'mesne' implies a terminus ad quem as well as a quo, and the terminus in the absence of a special order is the date of the decree. It is not possible to extract from the decree a command to pay any sum in or for 1882-84. The plaintiff could not, therefore, proceed by way of execution. His remedy was by a suit on the right established by the decree of this Court.

2. We reverse the decree in execution of the Subordinate Judge. Each party is to bear his own costs of these proceedings throughout. Moneys recovered under the order of the Subordinate Judge must be refunded.


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