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Nityananda Gantayet Vs. Gajapati Vasudeva Devu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad681
AppellantNityananda Gantayet
RespondentGajapati Vasudeva Devu
Excerpt:
civil procedure code - act xiv of 1882, section 18, expl. iii--res judicata--application in execution for two reliefs--order passed granting one relief and making no reference to the other--subsequent application for the other relief--power of court to grant. - - the law of res judicata as laid down in explanation iii of section 13 of the code of civil procedure can have no application to a case like this......of the district munsif of the 31st march 1896 neither granted nor refused the application for mesne profits which had been adjudged the plaintiff in the decree. the order is silent on the paint. if. is urged that, as the prayer for mesne profits was not granted, while the other prayer regarding the. delivery of the land was dealt with and granted, it must be taken that the application for mesne profits was refused and so the matter is res judicata. we cannot accept this contention as the decree granting the mesne profits is still in full force and effect, and the plaintiff is entitled to execute that decree so long as it is kept alive, and the decree cannot be superseded by the mere omission of the court executing the decree to pass orders on a claim made under it. if such orders.....
Judgment:

1. The order of the District Munsif of the 31st March 1896 neither granted nor refused the application for mesne profits which had been adjudged the plaintiff in the decree. The order is silent on the paint. If. is urged that, as the prayer for mesne profits was not granted, while the other prayer regarding the. delivery of the land was dealt with and granted, it must be taken that the application for mesne profits was refused and so the matter is res judicata. We cannot accept this contention as the decree granting the mesne profits is still in full force and effect, and the plaintiff is entitled to execute that decree so long as it is kept alive, and the decree cannot be superseded by the mere omission of the Court executing the decree to pass orders on a claim made under it. If such orders are not passed there is nothing to prevent the petitioner applying for them again in due course. The law of res judicata as laid down in explanation III of Section 13 of the Code of Civil Procedure can have no application to a case like this.

2. The point that mesne profits have been allowed for time in excess of that permitted by Section 211 of the Code of Civil Procedure was not raised in either of the lower Courts nor in this Court until to-day. We refuse to hear the objection now.

3. The appeal is dismissed with costs.


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