1. This is a Letters Patent Appeal against an order of a learned single Judge of this Court in an appeal from an order arising out of an execution proceeding. The appellant sustained injuries in an accident. He was a lorry driver and his lorry collided with a train at a level crossing. The respondent are a Railway Company and the amount of damages claimed by the appellant was Rs. 7000. The learned Judge who tried the case held that the Railway Company were liable in damages. He found that up to date the amount of damages suffered by the appellant was Rs. 932. The learned Judge however did not decide the question of possible future damage. The learned Judge formed the opinion upon the evidence that in all probability the plaintiff's physical condition would have suffered permanent deterioration as a result of the injuries sustained by him in the accident. He was of the view however that he was not able, on the information before him, to decide the full amount of damages to which the plaintiff was entitled until the lapse of a certain time when it would be possible more accurately to determine the permanent effects of the injuries sustained. He accordingly granted a decree for the sum of Rs. 932 and left the question of any further damages to be decided by the execution Court. His order ran:
I decree the claim for Rs. 932 with proportionate costs minus defendant's costs in proportion to the claim dismissed and provide that the defendant would be liable to pay such further damages with costs as the plaintiff may prove in the execution department as suffered after December 1930, owing to his suffering caused by the accident concerned. The rest of the claim is dismissed.
2. The appellant made an application in the execution Court for the execution of this decree and the learned Civil Judge held that the respondents were liable to pay a further sum of Rs. 382-8-0 in the name of damages to the appellant. On appeal to this Court the learned single Judge has set aside the order of the learned Civil Judge and has dismissed the application for execution. The learned Judge took the view that the execution Court had no jurisdiction to execute such a decree as had been passed by the trial Court. Learned Counsel for the appellant contended that once a decree had been passed by the trial Court it was the duty of the execution Court to give effect thereto and that the execution Court was not entitled to go behind the decree or refuse to execute it on the ground that the trial Court had no jurisdiction to pass it. In support of this contention he referred to three cases, Ananda Kumar v. Sheikh Madan : AIR1931Cal472 , Lakshmibai Anant v. Ravji Bhikji (1929) 16 A.I.R. Bom. 217 and Kemgam Swamy v. Subbamma (1930) 17 A.I.R. Mad. 30. These were cases in which the claims were for mesne profits. Now, under the provisions of the Civil Procedure Code it is for the Court trying the suit to decide the amount of mesne profits. In the cases cited above, however, the Court left the decision of the question of future mesne profits to the execution Court. It was held in these cases that this procedure amounted only to an irregularity; that the decree directing the execution Court to fix the amount of future mesne profits was not a nullity and that it was the duty of the execution Court to decide the question and to award mesne profits.
3. The decisions in these three cases may or may not be sound. We are, however, with, respect disinclined to follow them. The Legislature has made provision in the Code of Civil Procedure for the determination of the amount of mesne profits in a suit for possession and mesne profits. The assessment of the amount of mesne profits is a duty which is east upon the trial Court and it would appear to us that the trial Court has no power to transfer that duty to the execution Court. We are inclined to the view that the order of a trial Court directing the execution Court to assess mesne profits is an order without jurisdiction and should be treated as nullity. It is to be noted further in this connexion that special provision is made in regard to suits for possession and mesne profits for the passing of a preliminary and a final decree. These cases, however, are to be clearly distinguished from the case such as the present, where the claim is one for damages in respect of personal injuries. The Code of Civil Procedure makes no provision for the passing of a preliminary and a final decree in such a case. Order 20 makes provision for the passing of preliminary and final decree in the case of suits for possession and mesne profits; administration suits; pre-emption suits; suits for dissolution of partnership; suits for accounting between principal and agent, and suits for partition. There is no provision in Order 20 for the passing of a preliminary decree in a suit for damages in respect of personal injuries or in respect of breach of contract.
4. Learned Counsel for the appellant contended, however, that it was a matter of authoritative decision that the above list of cases in which preliminary decree might be passed was not exhaustive. This may be so, but in our view if the principle of granting a preliminary decree is to be extended beyond the aforementioned list that extension must be governed by the principle of ejusdem generis. Learned Counsel for the appellant was unable to point to any authority in support of the proposition that a. Court might in a suit for damages for personal injuries leave the question of further possible damage resulting from the injuries to the future to be decided either by itself or by another Court. The law in England is abundantly clear. It has been referred to by the learned single Judge in the course of his judgment. The learned Judge referred to Under bill's Law of Tort. At p. 115 the learned author deals with the question of 'Prospective damages' and observes:.that more than one action will not lie on the same cause of action and therefore prospective damages must be ascertained and awarded at the time of the trial.
5. There can be no question that it is the duty of the Court in a suit for damages for personal injuries to determine the amount of the defendant's liability once and for all at the time of the trial. The Court no doubt before it reaches its decision upon the liability may desiderate further evidence, but once the evidence has been closed it is the duty of the Court there and then to assess the amount of damages due to the plaintiff and in so doing to take into consideration any possible future incapacity of the plaintiff resulting from the injuries sustained. Learned Counsel for the appellant in the course of his argument referred to a Full Bench decision of this Court in Cantonment Board v. Kishan Lal : AIR1934All609 in support of his contention that it was the duty of the execution Court to execute the decree of the trial Court whether the trial Court had or had not jurisdiction to pass that decree. The circumstances of that case however were somewhat peculiar and the Pull Bench certainly did not lay down the general proposition upon which learned Counsel for the appellant invited us to proceed in determining this appeal. In the course of the judgment, we observe, the learned Chief Justice stated:
It is not possible to lay down broadly that an execution Court can in no circumstances go behind the decree and must of a necessity shut its eyes to circumstances under which the decree came to be passed.
6. In the absence of clear and definite authority binding upon us we hold that in a suit for damages for personal injuries it is the duty of the trial Court itself to determine the amount of liability of the defendant once and for all at the conclusion of the evidence. To hold otherwise and to sanction a procedure under which the determination of further liability might be decided by the execution Court would clearly lead to trouble, inconvenience and uncertainty. A suit for damages for personal injuries would never come to an end. It would be open if the execution Court could execute a decree such as has been passed in the plaintiff's suit, to the plaintiff to make a succession of applications for execution of the decree as his physical condition gradually deteriorates alleging that the continued deterioration was the result of the injuries sustained in the accident. Upon the whole matter we are satisfied that the trial Court had no jurisdiction to pass the decree under which the execution Court was directed to determine a question of further damage. That part of the order of the trial Court was clearly null and void for want of jurisdiction. It was open to the plaintiff to appeal against the order. He refrained from doing so. The order so far as further damage is concerned is one which cannot be executed by the execution Court. In the result we hold that the order of the learned Civil Judge in the execution Court has been rightly set aside. The appeal is accordingly dismissed with costs.