Skip to content


Babu Narsingh Das Vs. Debi Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All254; 43Ind.Cas.932
AppellantBabu Narsingh Das
RespondentDebi Prasad
Excerpt:
execution - decree directing ascertainment of mesne profits--limitation, commencement of--date of decree, what is. - .....alleging that they ware entitled to possession of the property which had been mortgaged and mesne profits, on the ground that the mortgage had been discharged by the usufruct and surplus was due to the mortgagor. this suit resulted in a decree for possession and a direction for an enquiry as to what amount of mesne profits the plaintiffs were entitled to. the matter had been litigated up to the high court and its decree was dated the 2nd of november 19c4. in pursuance of the decree directing the enquiry as to mesne profits an application was made for that purpose in the year 1907 and the mesne profits were finally adjudicated upon in the year 1910. the decree was then put into execution and various sums were realised from time to time. the present application for execution was.....
Judgment:

1. This appeal arises out of execution proceedings. The original suit was one for redemption, the plaintiffs alleging that they ware entitled to possession of the property which had been mortgaged and mesne profits, on the ground that the mortgage had been discharged by the usufruct and surplus was due to the mortgagor. This suit resulted in a decree for possession and a direction for an enquiry as to what amount of mesne profits the plaintiffs were entitled to. The matter had been litigated up to the High Court and its decree was dated the 2nd of November 19C4. In pursuance of the decree directing the enquiry as to mesne profits an application was made for that purpose in the year 1907 and the mesne profits were finally adjudicated upon in the year 1910. The decree was then put into execution and various sums were realised from time to time. The present application for execution was made on the 18th of April 1917.

2. This application was met with various objections. The objection insisted upon in this Court is that the decree which must be deemed as now executed is the decree of the High Court of 1904 and that accordingly its execution is barred either by the provision of Section 230 of the Code. of Civil Procedure of 1882 or by Section 48 of the present Code. These two sections appear to be almost identical with one exception, namely, that Section 230 of the Code of 1882 speaks only of a decree for payment of money, whilst the present Code speaks of decrees generally except as therein provided.

3. The words of the present Code are: 'Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed.' The argument put forward is that the date of the present decree was the 2nd of November 1901. If this contention be correct, the application was undoubtedly time barred and could not be granted. The matter is not now of any very general importance, because in future all decrees for mesne protits in a suit for recovery of immoveable property must be made by the Court which grants the decree for possession of the property (the rules provide for the making of a 'preliminary' and a 'final' decree). The contention put forward on behalf of the respondents is that the Court having directed an enquiry as to mesne profits there was no complete, or (to adopt an expression used by their Lordships of the Privy Council) there was no operative, decree until the mesne profits were ascertained in the year 1910. This very point was considered by a Bench of this Court in the case of Muhammad Umarjan Khan v. Zinat Begam 25 A. 385 : A.W.N. (1903) 80. The, learned Judges in that case referred to the judgment of their Lordships of the Privy Council in Radhi Prasad Singh v. Lat Sahib Ral 13 A. 53 : 17 I.A. 150 : 5 Sar. P.C.J. 600 : 7 Ind. Dec. (N.S.) 33 (P.C.) and also to Pull Bench decision of the Calcutta High Court. We think that we ought to follow this case, which is in accordance with the practice which has been adopted by the new Code of Civil Procedure and which, moreover, seems to be in accordance with justice. Applying the principle laid down in these cases to the present, it must be deemed that the date of the decree so far as it related to mesne profits is the 15th of February 1910, when the mesne profits were for the first time ascertained. Since that date there have been numerous applications for execution which have saved limitation and made the present application within time. On the general merits we have heard the parties, and see no reason to differ from the view taken by the Court below. We dismiss the appeal with costs, including in this Court fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //