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Rudra Pratab Singh and ors. Vs. Sarda Mahesh Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All588; 87Ind.Cas.322
AppellantRudra Pratab Singh and ors.
RespondentSarda Mahesh Prasad Singh
Excerpt:
- - it is at best an interlocutory order and no appeal is maintainable......order passed by the subordinate judge of mirzapur directing the method in which an account of the mesne profits was to be taken as against the present appellants who were impleaded as the legal representatives of baij nath prasad singh deceased.2. on the 3rd of march 1915, a decree was passed for possession of certain property which, among other things, directed that an account shall be taken of the dealings of baij nath prasad singh with the disputed property and of the rents and profits arising there from, and that baijnath prasad singh will pay to the plaintiff what may be found due to him on the taking of the said accounts. that decree was upheld by this court, except as regards certain mow able property, on the 30th of may, 1916. there was a further appeal to his majesty in council.....
Judgment:

Kanhaiya Lal, J.

1. This is an appeal from an order passed by the Subordinate Judge of Mirzapur directing the method in which an account of the mesne profits was to be taken as against the present appellants who were impleaded as the legal representatives of Baij Nath Prasad Singh deceased.

2. On the 3rd of March 1915, a decree was passed for possession of certain property which, among other things, directed that an account shall be taken of the dealings of Baij Nath Prasad Singh with the disputed property and of the rents and profits arising there from, and that Baijnath Prasad Singh will pay to the plaintiff what may be found due to him on the taking of the said accounts. That decree was upheld by this Court, except as regards certain mow able property, on The 30th of May, 1916. There was a further appeal to His Majesty in Council which was dismissed on the 7th of February 1921. Before the decision of that appeal by the Privy Council, Baijnath Prasad Singh died. It is stated that he died after the hearing had taken place before their Lordships and his legal representatives could not, therefore, have been brought on the record before that appeal was decided. An application for the settlement of accounts in pursuance of that decree was made on 28th February, 1921 which, among other things, asked that Rudra Pratap Singh, Jang Bahadur Singh and Upendra Bahadur Singh, sons of Baijnath Prasad Singh, might be substituted on the record in the place of the deceased. As a matter of fact, Jang Bahadur Singh and Upendra Bahadur Singh, two of the younger sons of Baijnath Prasad Singh, were already on the record of the suit which went up in appeal to the Privy Council. The only new person who was proposed to be added or substituted in the place of Baijnath Prasad Singh was Rudra Pratap Singh, his oldest son. All the same the object of the application was to make Rudra Pratap Singh, Jang Bahadur Singh and Upendra Bahadur Singh liable for the mesne profits claimed by the plaintiff, as the legal representatives of Baijnath Prasad Singh deceased.

3. Various objections were taken by the three sons of Baijnath Prasad Singh to the said application; but the main objection with which the Court below first proceeded to deal was to the effect that the sons were not liable for the mesne profits, if any, appropriated by Baijnath Prasad Singh, because he was in possession as a trespasser and the liability for the accounts could not, therefore, be enforced against his sons. The Court below held that the possession of Baijnath Prasad Singh, though illegal, could not bo called wrongful and that the sons of Baijnath Prasad Singh could, therefore, be made liable to render the accounts of the mesno profits which their father had appropriated. The Court below then proceeded to direct the method in which the accounts were to be determined. From that order the present appeal has been filed and the preliminary question for consideration is whether such an appeal is maintainable.

4. The learned Counsel who appears for the appellants contends that the effect of the order of the Court below was to determine the liability of the appellants and that the appeal was consequently maintainable under Section 47 of the Code of Civil Procedure. It is not contended that the appellants are not the legal representatives of the deceased Baijnath Prasad Singh. The decree directed that an account of the mesne profits shall be taken as against Baijnath Prasad Singh. It was in fact a decree passed in terms of Order 20, Rule 12 of the Code of Civil Procedure Clause (c) of which enables the Court to direct an enquiry to be made as to the rents and mesne profits to which the plaintiff may be entitled. Such an enquiry is made in the course of a proceeding which is virtually a proceeding in continuation of the original suit, and under Rule 12, Clause (2), a final decree has to be prepared in respect of the mesne profits which may be awarded in accordance with the result of such an enquiry. From such a final decree an appeal is maintainable. The order of the Court below merely directs that the appellants are liable to render accounts as the legal representatives of Baijnath Prasad Singh, deceased; and the amount for which they are liable has not yet been determined. In fact, no final decree has yet been prepared. Really there is no execution proceeding going on. The preliminary decree which directed the taking of accounts is not capable of execution and the question which has been actually determined by the court below is merely a question relating to the substitution of the names of the appellants in the place of Baijnath Prasad Singh, deceased, and their liability to render the accounts directed by the decree as his legal representatives. It is not a question relating to the execution, satisfaction or discharge of a decree; Section 47, therefore, has no application. It is at best an interlocutory order and no appeal is maintainable. The preliminary objection must, therefore, prevail. It will be open to the appellants to raise the question of their liability in any appeal that may be filed from the final decree which may be passed in the proceeding.

5. Under Section 244 of the old Civil Procedure Code an enquiry into mesne profits could have been, it may be noted, made in an execution proceeding, but as pointed out in lshaq Khan v. Rustom Khan (1918) 40 All. 292, the effect of the change introduced by Order 20, Rule 12 of the Code of Civil Procedure is that the Court which hears the suit is the Court which is eventually to ascertain the mesne profits and pass a final decree for such profits, and that till such final decree is passed there is no decree for mesne profits capable of execution. In Dalgleish v. Nanda Misser (1912) 13 I.C. 186, it was held that an order by which a Court determines the principle whereupon mesne profits are to be assessed and directs their ascertainment by a Commissioner was an interlocutory order in a pending suit and not appealable as a decree. The appeal is, therefore, dismissed with costs.


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