S.P. Mohapatra, J.
1. This appeal has been filed by judgment-debtors 1 and 3 against the reversing judgment of the lower appellate Court arising out of a proceeding under Section 47, Civil Procedure Code. The original plaintiff had brought Title Suit No. 2 of 1945 for recovery of possession after evicting defendants 1 to 9. He also prayed for mesne profits for the year 1944-45. Eventually the suit was decreed for restoration of possession of the plaintiff and it was further ordered in the preliminary decree that all the defendants were liable for mesne profits for the year 1944-45. The plaintiff took delivery of possession of the properties in dispute in due course with the assistance of the Court and got the decree for costs executed and realised. We are not concerned in this appeal with the decree regarding costs; but we are concerned merely with the decree for mesne profits.
2. The preliminary decree was passed on 22-7-1946. The defendants went up in appeal before the first appellate Court snd also before the High Court but unsuccessfully. The preliminary decree passed by the Trial Court was confirmed in Second Appeal No. 305 of 1948 (A). Thereafter the plaintiff made application for ascertainment of the actual amount payable to him on the item of mesne profits. This was sent for enquiry and report of a Commissioner and Mr. B. Acharya, Pleader was appointed as a commissioner. The Commissioner sent his report on 7-12-1948 and on the basis of the report final decree was passed on 19-4-1949. The final decree in the operative portion mentions that the amount finally ascertained was Rs. 981/2/8 and further it was to be paid by all the defendants.
3. This final decree was put in execution by the present decree-holders who are the legal representatives of the original plaintiff. The objections raised by defendants 1 and 3 are twofold: (i) that they are not at all liable to pay the mesne profits as they were not in possession of the suit property; and (ii) that the mesne profits had been paid up to the decree-holders. In support of this contention of theirs they assert that there was a proceeding under Section 145, Cr. P. C. as between defendants 1 to 4 and 5 to 9.
It was determined that defendants 5 to 9 were in possession. Indeed the decree-holder was not a party to this proceeding; but nevertheless the question that arises pertinently to be decided in the present case is whether such a plea is permissible to be taken by the judgment-debtors in execution when there has already been a final decree passed determining the liabilities and ordering that all the defendants are liable to pay the amount of Rs. 981/2/8.
4. Mr. Pal, appearing on behalf of the judgment-debtors-appellants, strongly relies upon two decisions in support of his contention that this is a question which ought to be gone into in the execution proceedings. I will first refer to the decision of Sheobalak Singh v. Achutananda Singh reported in AIR 1943 Pat 80 (B). That was a case between sets of co-sharers. Even though in form there was a decree that the defendants were liable to pay the mesne profits, their Lordships held that in substance the different co-sharers were liable to pay according to their shares. The plaintiff also in that case was a co-sharer along with the defendants. It does not appear from that decision that the question arose in excution only after the rights and liabilities of the parties were determined in a final decree. But the more important decision which has also been relied upon by their Lordships of the Patna High Court in that case is a decision of their Lordships of the Privy Council reported in Gurudas Kundu v. Hemendra Kumar, AIR 1929 PC 300 (C). On a careful consideration of the decision of their Lordships of the Privy Council, which is undoubtedly entitled to highest respect, I am of the view that the present case is not covered by it. In the case before their Lordships of the Privy Council, the order of the trial Court was to the following effect:
'It is ordered that the claim of this suit be decreed with costs and mesne profits and interest against the principal defendants and the defendants subsequently added. .... .The amount of mesne profits to be ascertained in execution.'
When in execution the amount was ascertained, a point arose whether the different sets of defendants would be liable to pay according to their possession and whether each would be liable jointly and severally. Their Lordships held that even though in form the decree stood against all the defendants jointly, but considering the possession of the parties it was to be construed in substance as apportioning the liabilities according to the possession of the judgment-debtors. The distinguishing feature in the present case is that there was a final decree which completely adjudicated and determined the liabilities according to the rights of the parties inter se. In my view, after the preliminary decree when the plaintiff had filed a petition for obtaining the final decree, the scope of the proceedings before the Court before passing the final decree was to finally adjust the equities between the parties to the suit and once it was so done, the question could not be re-opened in execution.
Indeed if the position be that the ascertainment of the mesne profits were left to be determined only in the execution proceedings then during those proceedings only final adjustment of equities may be determined. Moreover this is not a case as between co-sharers. This is a case out and out as against trespassers. I am inclined to take this view particularly in view of the special features arising in the final decree proceeding.
Before the Commissioner the present judgment-debtors-appellants had appeared and taken up the self-same point that they were not liable as they were not in possession. The Commissioner made observation to the effect that the defendants had all along consistently taken up the delence that they were in cultivating possession of the lands in dispute. Further these judgment-debtors or at least some of them had stated on oath in previous occasions to that effect. This report was placed before the Court who had to pass the final decree.
With this background I am convinced to observe that there cannot be any distinction in form and substance in the decree which really swayed very much their Lordships of the Privy Council in deciding the case of AIR 1929 PC 300 (C), which was subsequently followed by the Patna High Court as I have already discussed. The report was before the Court who, after having paid sufficient attention to the report, passed the final decree to the effect that all the defendants were liable to pay the above amount of Rs. 981/2/8.
In my view, therefore, once the point was agitated and a decree was passed, it no longer lies in the mouth of the judgment-debtors to agitate it once again in the execution stage as they had done in this case. The point taken by Mr. Pal therefore must fail.
5. Regarding the second point, it appears from the order dated 26th September, 1951 of this Court when the second appeal was pending before the High Court, that the learned counsel, appearing on behalf of the respondent-decree-holder, had received an amount of Rs. 300/-from the learned counsel, appearing on behalf of the judgment-debtors. This was indeed after the final decree and the order shows that it was towards the final decree passed by the Court. In my view the decree-holder cannot proceed on with the execution so far as this sum of Rs. 300/- is concerned. He is to proceed with the execution in respect of the balance of the amount due.
6. Subject to this modification, the appeal fails and is dismissed with costs. Fearing fee in this appeal is assessed at Rs. 100/- (rupees one hundred) only.