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Ram Ghulam Vs. Dwarka Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All170
AppellantRam Ghulam
RespondentDwarka Rai and ors.
Excerpt:
civil procedure code, section 244 - mesne profits--decree for possession of immoveable property--reversal of decree on appeal--appellate decree silent as to mesne profits--suit for recovery of mesne profits. - .....court made no order in regard to the profits which he had received while in possession. the present suit was instituted by the appellant to recover compensation for the loss of these profits. now, we have two questions to consider. first, could the appellant have recovered the profits under the decree of the appellate court? secondly, was he bound to recover them in that manner, or could he maintain a fresh suit for them2. for my own part i doubt whether the appellant could have recovered the profits in execution of his decree. the value of the profits is a question which was not then tried, and i do not see what means the court had of deciding it, or of giving effect to any order for restitution of profits. the real question before us is, whether this is a matter 'arising between.....
Judgment:

W. Comer Petheram, C.J.

1. I am of opinion that this suit is not barred by Section 244 of the Code of Civil Procedure. The original suit was instituted by the respondent Sheocharan in 1880 for redemption of a mortgage; he obtained a decree, and, in the execution of that decree, the present appellant was dispossessed of the mortgaged property, and the decree-holder obtained possession. He remained in possession for more than a year and the decree was then reversed on appeal; but the Appellate Court made no order in regard to the profits which he had received while in possession. The present suit was instituted by the appellant to recover compensation for the loss of these profits. Now, we have two questions to consider. First, could the appellant have recovered the profits under the decree of the Appellate Court? Secondly, was he bound to recover them in that manner, or could he maintain a fresh suit for them

2. For my own part I doubt whether the appellant could have recovered the profits in execution of his decree. The value of the profits is a question which was not then tried, and I do not see what means the Court had of deciding it, or of giving effect to any order for restitution of profits. The real question before us is, whether this is a matter 'arising between the parties to the suit in which the decree was passed, and relating to the execution, discharge, or satisfaction of the decree.' It may be that the present question arose out of the decree ; but it did not' relate to the execution, discharge, or satisfaction of the decree,' because at that time no such question had arisen or was in existence. I am therefore of opinion that, whatever powers the Court might possess as to ordering restitution of the amount received by the respondent during his wrongful possession, such a question is not one of the kind referred to in Section 244 of the Civil Procedure Code in respect of which a separate suit is barred. The real meaning of Section 244 would seem to be that the decree must be enforced by execution, and that the decree-holder may not bring an action upon the decree itself.

Oldfield, J.

3. I am of the same opinion; but I wish to distinguish the present case from Partab Singh v. Beni Ram I.L.R. 2 All. 61 which has been referred to. In that case the decree was for mesne profits, which were therefore properly recoverable in the execution-department, but here the decree was silent as to mesne profits.

Brodhurst, J.

4. I also am of opinion that the suit is maintainable.

Mahmood, J.

5. I concur in the conclusion arrived at by the learned Chief Justice, on the ground that the mesne profits collected by the respondent were not realized by him in execution of the decree which was reversed on appeal.

Duthoit, J.

6. I also concur with the Chief Justice; but I wish to add that the words in Clause (c) of Section 244, 'any other questions arising,' &c;, should be read as 'any other questions directly arising:' otherwise the most remote inquiries would be possible in the execution department.


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