1. This first appeal arises out of execution proceedings instituted by the appellant to enforce a decree which he succeeded in obtaining from this Court on the 5th June 1906. That decree contained a declaration that the plaintiff appellant was entitled to half a zamindari property in certain villages; further that he was entitled to mesne profits in respect of his aforesaid share in the aforesaid property--the amount to be ascertained m the execution department. Before the Subordinate Judge, the Court executing the decree, objections were taken by the judgment-debtor to the effect that mesne profits could not be awarded by the Court executing the decree in addition to the 3 years mesne profits claimed in the plaint; also that the decree-holder was not entitled to recover any interest from the judgment-debtor inasmuch as the decree made no mention of interest; also that he was not entitled to certain expenses which he had incurred during the time he was in possession, such as payment of Government revenue and collection of cesses.
2. The Subordinate Judge disallowed the decree-holder's claim for mesne profits, for any period over and above the three years mentioned in the plaint. He also refused to grant any interest upon the mesne profits and in considering the amount due to the decree-holder he gave the judgment-debtor credit for such Government revenue and cesses as had been paid by him and also for half share of thanefs pay and in his final order directed that each party was to bear his own costs of the objections.
3. The decree-holder comes here in appeal and takes exception to the limitation imposed by the Court below upon the period for which mesne profits were payable. He also contends that he is entitled to interest on mesne profits and that inasmuch as the judgment-debtor had not acted in the exercise of a bona fide claim ho was not entitled to any deduction whatever from the mesne profits. He also asks this Court to give him his costs in the Court below.
4. In support of the first contention raised by him he puts forward the judgment of their Lordships of the Privy Council in Falcruddin Mohammad Ahsan v. The Official Trustee of Bengal 8 C. 178 : 10 C.L.R. 176 : 8 I.A. 197. This decision he contends has been followed by this Court in Bijai Bahadur Singh v. Bhup Indar Bahadur Singh 19 A. 296. We do not think that this' point is open to any question. In the first case their Lordships tinder similar circumstances held that a decree-holder was entitled to mesne profits until the date of delivery of possession to him. This decision was, however, prior to the passing of the old Code of Civil Procedure (Act XIV of 1882). In that Code it was laid down that the Court might provide in the decree for the payment of mesne profits in respect of property decreed, from the institution of the suit until delivery of possession to the party in whose favour the decree was made or until the expiration of three years from the date of the decree, whichever event first occurred.
5. The decree of this Court when it declared plaintiff appellant entitled to mesne profits might in our opinion be held to have before its mind the provisions of Section 211. At the present moment we are in the position of a Court executing, a decree and not entitled to go behind the words in the decree. The construction we place upon them should be one clearly in accordance with Section 211 and we hold that the decree-holder is entitled to mesne profits of the property from the institution of the suit until delivery of possession to him or until the expiration of 3 years from the decree whichever event first occurs.
6. As regards the second plea, it is true that the decree of this Court that is under execution makes no specific mention of interest upon mesne profits, but in view of the fact that the term mesno profits has been explained in the Code of 1882 to be profits which a person in wrongful possession of the property actually received or with ordinary diligence might have received therefrom together with interest on such profits, we hold that the words mesne profits mean just what is laid down in the Code of 1882. We have authority for this view in the case of Grish Chunder Lahiri v. Shoshi Shikhareswar Roy 27 C. 951. Such appears to be the practice of our Courts. See Narpat Singh v. Har Gayan 25 A. 275 to say nothing of other cases in which the same has been held.
7. With reference to the plea urged by the judgment-debtor to the effect that when accounts are being taken between him and the decree-holder he is entitled to set off the amount which he has paid by way of Government Revenue and collection of cesses and expenses, the learned vakil for the appellant contends that inasmuch as the judgment-debtor was a trespasser, it was not imperative on the Court when estimating the damages to allow the wrong doer even such charges as would have been voluntarily incurred by an owner in possession. In support of this we were referred to Dungar Mal v. Jai Ham 24 A. 379. The case before their Lordships who decided that case was of a trespass of a very aggravated and malicious character. The case before us differs widely. The respondent was lawfully in possession. He had not thrust himself into possession in defiance of other's rights. The utmost wrong that he did was in holding the decree-holder at arms length and refusing to deliver to him the profits of his share. His position was that of a lambardar. It was his duty as lambardar to pay Government Revenue and to collect rents. In performing these acts he was acting rightly and properly and we think that the decision of the Court below upon this portion of this case was right and proper. The judgment-debtors, in our opinion, entitled to have what he has paid in the way of Government Revenue and collection of charges. The result is that we so far modify the order of the Court below as to declare that the decree-holder is entitled to mesne profits up to the date of possession or the period within three years from the date of the decree which ever event first occurs, and we refer the case back to the Subordinate Judge to remodel the accounts upon this basis. We also declare 'that the decree-holder is entitled to interest at the Court rate upon such sum as may be found due to him for mense profits. Quoad ultra' we dismiss the appeal. Costs in proportion to success and failure.