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Rajah Bahadur Dhanarajagerji Vs. Rajah Panuganti Parthasaradhy Rayanim Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1934)66MLJ263
AppellantRajah Bahadur Dhanarajagerji
RespondentRajah Panuganti Parthasaradhy Rayanim Varu and ors.
Cases ReferredSeetharaman Chettiar v. Chidambaram Chettair I.L.R.
Excerpt:
- - the 4th defendant has put forward a specific case that owing to certain reasons he was not in a position to collect the full rentals and has failed to make it out. in calculating such mesne profits, the execution department should not award the gross rental of the property unless it is satisfied that the entire-rental was received by the lessees (defendants) or with ordinary diligence might have been received by them. whether if that had been produced it would have satisfied the inquiry, cannot be known. 10. in this case, as i have said, the question of the burden of proof is of subsidiary importance, as the 4th defendant has attempted to show by putting forward certain specific pleas why the real receipts fell short of the gross demand and has failed to prove them by satisfactory.....venkatasubba rao, j.1. c.m.a. no. 362 of 1929. this appeal is filed by the 4th defendant against the order, dated the 26th of august, 1929, of the subordinate judge of nellore fixing the amount of mesne profits made in pursuance of the order of his majesty, dated the 25th june, 1924. the order in question was made on the execution petition no. 63 of 1924 filed by the plaintiffs, and the facts which led to the filing of that petition may be shortly stated.2. as a result of a certain transaction between the late rajah of kalahasti and the 1st defendant (after whose death the 4th defendant, his son, was brought on the record as his representative) the suit properties passed to the latter and the plaintiffs, who succeeded as auction-purchasers to the rights in the properties of the rajah,.....
Judgment:

Venkatasubba Rao, J.

1. C.M.A. No. 362 of 1929. This appeal is filed by the 4th defendant against the order, dated the 26th of August, 1929, of the Subordinate Judge of Nellore fixing the amount of mesne profits made in pursuance of the order of His Majesty, dated the 25th June, 1924. The order in question was made on the Execution Petition No. 63 of 1924 filed By the plaintiffs, and the facts which led to the filing of that petition may be shortly stated.

2. As a result of a certain transaction between the late Rajah of Kalahasti and the 1st defendant (after whose death the 4th defendant, his son, was brought on the record as his representative) the suit properties passed to the latter and the plaintiffs, who succeeded as auction-purchasers to the rights in the properties of the Rajah, filed O.S. No. 55 of 1915 (which subsequently was renumbered as No. 1 of 1917) claiming to redeem them on the' footing that the transaction was a mortgage. Alternatively the plaintiffs claimed to have the properties reconveyed to them upon payment of the purchase price on the ground that, if the transaction amounted to an out-and-out sale, the conditions entitling the Rajah to a reconveyance had been complied with by him and they succeeded to his rights. The learned Subordinate Judge held that the transaction amounted to a mortgage by conditional sale, but the High Court on appeal was of the opinion that it was an absolute sale of the properties but found, agreeing with the trial Court, that the conditions entitling the Rajah to a reconveyance had been performed and that the plaintiffs were entitled to have the properties reconveyed to them on payment of the price. The question of fact that was discussed at great length both in the trial Court and the High Court was whether the late Rajah tendered as alleged by the plaintiffs the price of six lakhs on the 31st of August, 1914. The Subordinate Judge held that the plaintiffs' case regarding the tender was true, and treating, as I have said, the transaction as a mortgage, passed on the 5th October, 1918, a preliminary decree declaring that the amount due by the plaintiffs to the defendant was Rupees six lakhs and directing that, on payments by the former of that sum on or before the 5th of March, 1919, the latter should reconvey the properties to them and further ordering the defendant to pay the plaintiffs Rs. 60,000 on account of past mesne profits for fasli 1324. The plaintiffs paid into Court the mortgage amount (six lakhs) on the 5th March, 1919 and the trial Court passed a final decree on the 7th of October, 1919, directing the defendant to reconvey the properties to the plaintiffs. It was against these preliminary and final decrees that appeals were filed to the High Court. They were Appeals Nos. 46 of 1919 and 57 of 1920, both filed by defendant 1, and the plaintiffs also filed a memorandum of objections. The High Court concurred with the finding of the trial Court on the point of tender, but, having held, as I have said, that the transaction amounted to an absolute sale with an agreement to reconvey, passed a decree which varied materially the decree of the trial Court as to interest and mesne profits. In view of a certain contention raised before us to which I shall presently refer, it may be useful to point out here why the Subordinate Judge awarded mesne profits only for fasli 1324. The tender of the price was, as stated above, made on the 31st of August, 1914 and the suit claiming the properties back was filed in August, 1915. The plaintiffs did not follow up the tender by paying the amount into Court, and the Subordinate Judge therefore held that they were entitled to mesne profits only up to the institution of the suit and not to the subsequent profits. Taking this view, the Subordinate Judge granted mesne profits for fasli 1324, i.e., for the period between the date of the tender and the date of the suit. When the matter came up before the High Court, the question as to mesne profits and interest was fully considered and the learned Chief Justice Sir John Wallis discusses in his judgment what the true legal principles are that would apply to the case, in view of the High Court's finding that the 1st defendant having refused the tender continued to be in possession as mortgagee. The conclusion at which the High Court arrived is thus stated in the judgment of Sir John Wallis, C.J.:

The 1st defendant therefore will be entitled to interest on the sum of Rs. 6 lakhs from 1st September, 1914, up to 5th March, 1919, the date of the deposit, at 6 per cent, per annum. On the other hand the plaintiffs will be entitled to mesne profits from 1st July, 1914, until possession or until the expiry of three years from this date, whichever may be earlier.

3. It will be noticed that, though the liability for the mesne profits was determined by the judgment, it did not fix the actual amount or the rate; but the decree that was drawn up (dated the 24th February, 1921), going further than the judgment, fixed the amount at Rs. 60,000 per annum. The result therefore was that under the High Court's decree the 1st defendant became entitled to interest at 6 1/2 per cent, per annum on the six lakhs from the 1st September, 1914 (the tender having been made on the 31st August) up to the 5th March, 1919 (the money having been on that date deposited into Court) ; and the plaintiffs on the other hand became entitled to mesne profits at Rs. 60,000 per annum from the 1st July, 1914, until delivery of possession. From this decree of the High Court the 1st defendant filed an appeal to the Privy Council. On the question of tender their Lordships held, agreeing with the concurrent findings of the Courts in India, that the plaintiffs' case was true, and, as regards the character of the transaction, they decided, upholding the Subordinate Judge's view and differing from that of the High Court, that it amounted to a mortgage and not to an out-and-out sale with an agreement to reconvey On these findings the Judicial Committee advised that the judgment of the High Court should be discharged and that the decree of the Subordinate Judge should be restored with the following variations: (1) that the plaintiffs were chargeable with interest upon the mortgage money at 6 per cent, per annum from the 1st September, 1914 to the 5th March, 1919, when it was paid into Court, (2) that the 1st defendant (by that time deceased and represented by the 4th defendant) was entitled to the interest earned by the mortgage money since it was so deposited into Court, and (3) that the 4th defendant should account to the plaintiffs for the mesne profits of the properties from the 1st July, 1914, until actual delivery. The order of His Majesty approving these recommendations of the Privy Council was made on the 25th June, 1924, and it was in due course transmitted by the High Court to the Lower Court for its terms being carried into execution. It is in pursuance of this order that the learned Subordinate Judge has now determined the amount of the mesne profits, and from his decision both the parties have filed the appeals.

4. [His Lordship set out the contentions of the parties, dealt with the evidence and proceeded:]

5. Some question has been raised as to the onus of proof; but in the circumstances of this case any discussion as to the onus seen is unnecessary. The 4th defendant has put forward a specific case that owing to certain reasons he was not in a position to collect the full rentals and has failed to make it out. But I may state what in my opinion the true rule as to the onus of proof is. When a party claims damages, he must adduce proof in support of his claim. The burden of proof rests in the first instance upon him; in order to succeed he must put the Court in possession of satisfactory evidence as to the quantum of damages to which he is entitled. The claim for mesne profits is virtually a claim for damages, and the rule that the plaintiff must discharge the burden applies therefore to such a claim. But the expression 'mesne profits' is defined in Section 2, Clause (12), Civil Procedure Code, as meaning, not only those profits which a person in wrongful possession actually received but also such profits as he might with ordinary diligence have received. If the defendant asserts that a particular amount and no more was received by him, the duty of establishing it affirmatively rests upon him, that fact being especially within his own knowledge (Section 106 of the Evidence Act). On his laying before the Courts sufficient evidence to prove that fact, he shifts the burden to the opposite party of proving that more might have been received. This is the effect of Ramakka v. Negasam I.L.R. (1923) 47 Mad. 800 : 48 M.L.J. 89 on which both sides have relied. Muhammad Abdul Gaffur Rowther v. Muhammad Samsuddin Rowther : AIR1925Mad297 does not lay down a different rule. In Amir Kazim v. Darbari Mal I.L.R. (1902) 24 All. 475 the learned Judges observe:

In calculating such mesne profits, the execution department should not award the gross rental of the property unless it is satisfied that the entire-rental was received by the lessees (defendants) or with ordinary diligence might have been received by them.

6. Turning to the facts of the present case, the defendant had at his command all the machinery available to a Zamindar to collect the amount fixed as the beriz, and the plaintiffs, on showing what that beriz is, must be deemed to have prima facie made out that the opposite party could with ordinary diligence have collected it. This principle is recognised in Brojendro-Coomar Roy v. Madhub Chunder Ghose I.L.R. (1882) 8 Cal. 343, where the learned Judges, after stating that it was proved that a certain jumma was payable in respect of the property, observed:

It lay upon the judgment-debtors to give some explanation or offer some evidence to show that as a matter of fact and for causes over which they had no control this sum had not been realised by them.

7. In Grish Chunder Lahiri v. Shoshi Shikhareswar Roy the Judicial Committee also lay down the rule in more or less the same terms:

And prima facie,

their Lordships observe,

it is fair to infer that a person in possession of land may by ordinary-diligence get rent for it according to the prevailing rates for such land and that the true owner wrongfully dispossessed has been a loser by that amount.

8. An earlier passage from the same judgment may usefully be extracted:

But the amin, as directed by the Subordinate Judge, has tried to ascertain the very thing which the Code directs. He called for evidence of actual receipts. Whether if that had been produced it would have satisfied the inquiry, cannot be known. It might still have been necessary to inquire into the possibility of larger receipts by ordinary diligence.

9. This case is an authority for the proposition that prima facie it is fair to presume that a person in possession may by ordinary diligence get rent according to the prevailing rates, in other words, up to the beriz or the demand on the land.

10. In this case, as I have said, the question of the burden of proof is of subsidiary importance, as the 4th defendant has attempted to show by putting forward certain specific pleas why the real receipts fell short of the gross demand and has failed to prove them by satisfactory evidence.

11. In the result, we must hold that on the credit side of the account should be placed for the accounting period (fasli 1325 to fasli 1333) the sum of Rs. 1,42,250 per year, the same amount as we have fixed as the beriz or the gross annual demand. It may be recalled that the figure at which the Lower Court has arrived is Rs. 1,48,096-6-2.

12. [His Lordship proceeded to deal with the various items and continued:]

13. Collection charges (generally).--A question has been raised whether the defendant can be allowed to charge the estate with the expenses of collection. The learned Judge has allowed these charges to be defrayed out of the mesne profits to the end of fasli 1328, but for the subsequent period he has held that the defendant is disentitled to recover those charges. The distinction appears to be based on the ground that, when the act of trespass is besides being wrongful (every trespass is wrongful) also tortious and malicious, the trespasser is in equity disentitled to charge such expenses as have been voluntarily incurred. The charges are divided into two categories : first, necessary payments such as Government revenue or ground rent--these every wrongdoer is entitled to recover--and secondly, ordinary expenses which would be voluntarily incurred, such as collection fees, which only an honest trespasser can recover. This distinction was recognised and acted on in Altaf Ali v. Lalji Mal I.L.R. (1877) 1 All. 518. In that case the Court (Stuart, C.J. dissenting) held that, when the trespasser entered or continued on the property without any bona fide belief that he was entitled to do so, it is not imperative on the Court to allow him to charge the estate with the expenses of collection. This was followed in Dungar Mal v. Jai Ram I.L.R. (1902) 24 All. 376. The test to be applied according to this decision is, is the trespass tortious and malicious, in other words, is the misconduct of an aggravated character If so, the collection charges should not be allowed to the, trespasser. This view seems to have been accepted by the Calcutta High Court in Raja Sashikanta v. Raja Sarat Chandra (1921) 34 C.L.J. 415. Another case that has been cited as supporting this view is Dakshina Mohun Roy Chowdhry v. Saroda Mohun Roy Chowdhry . We may at once state that the last-mentioned case does not deal with the point at all. The question is whether the view taken by the Lower Court can be supported. Wrongful possession is the very essence of a claim for mesne profits; that is what the definition of the expression 'mesne profits' states. Mesne profits are defined [S. 2, Clause (12)] as those profits which a person in wrongful possession actually received or might with ordinary diligence have received. The only relevant consideration under this definition is, whether the defendant's possession was wrongful or not. If it was wrongful, the Court is not justified in going further and inquiring what the degree of the misconduct or culpability is. With great respect, sufficient attention does not seem to have been paid to the definition in the Code in the cases to which we have referred, and we are unable to follow them. Our view is in accordance with a decision of this Court in Thirumalayappa Mudaliar v. Kaliyani Anni 1931 M.W.N. 813.

14. Neither side supports the actual method adopted by the learned Judge. On the one hand, it is argued for the plaintiffs that the defendant's possession should from the very beginning be treated as tortious and malicious, and for the defence it is contended, on the other, that this distinction is totally unfounded and ought not to be recognised. In the opinion we have formed, it is unnecessary to decide whether at any point of time the trespass was of an aggravated character. I therefore hold that for the whole period of accounting the defendant is entitled to charge the estate with collection charges.

15. The decree of the Lower Court is modified accordingly.

16. We make the following order as to the costs of the appeal. The plaintiffs shall pay the 4th defendant's costs, which are hereby fixed at Rs. 2,000 and the 4th defendant shall pay the plaintiff's costs, which are fixed at Rs. 6,000. The order of the Lower Court as to costs shall stand.

Reilly, J.

17. I agree.

Venkatasubba Rao, J.

18. C.M.A. No. 161 of 1930. We have just disposed of the appeal filed by defendant 4. The plaintiffs have filed the present appeal, attacking the same order of the learned Subordinate Judge, and it mainly raises a question relating to the construction of the order of His Majesty. The plaintiffs contend that they are entitled to gross receipts as distinguished from mesne profits. Mr. Venkata-ramana Rao, their learned Counsel, urges that, as the Judicial Committee has found that the legal relationship was one of mortgagor and mortgagee, the proper inference is that Section 76(i) of the Transfer of Property Act applies, and the plaintiffs are entitled to gross receipts without deductions. This position is untenable; for our duty is not to consider what the rights of the parties are, but we are merely concerned with giving effect to His Majesty's order. Is it to be supposed that, when their Lordships used the expression ' mesne profits ', they intended it to mean gross receipts? First, it must be observed that the term ' mesne profits' was used as meaning net receipts throughout the proceedings by the parties, the trial Judge and the High Court, and there is no warrant for supposing that the Judicial Committee intended to use it in a different sense. In their plaint the plaintiffs were careful enough to distinguish the gross income (estimated at Rs. 1,40,000) from the net income (stated to be Rs. 80,000). Having thus referred both to the gross income and the net, they describe the latter sum alone as mesne profits. It is doubtful whether any claim was made in the plaint for gross receipts at all; but granting that the plaint is susceptible of such a construction, it is clear beyond doubt, as we have said, that the expression 'mesne profits' was used as meaning net receipts. Then the trial Judge found that the transaction in dispute amounted to a mortgage and the question therefore arose whether the defendant as mortgagee in possession was liable under the Transfer of Property Act to account for gross receipts. Applying his mind therefore to this distinction, the learned Subordinate Judge observes: ' In the present case the plaintiffs have claimed only the net receipts as mesne profits.' When the case was taken in appeal to the High Court, it became necessary, in the view the learned Judges took that the transaction amounted to a sale, to consider the nature of the relief to which the plaintiffs were entitled. The judgment of the High Court shows that what was then being considered was a claim to mesne profits and not to gross receipts. It is inconceivable that the Privy Council for the first time departed from this meaning and used the expression in a different sense. Further, the words neither in ordinary parlance nor in their legal acceptation mean gross receipts. The term ' mesne profits ' occurring in the Code is very different from 'gross receipts ' used in the Transfer of Property Act. Each of these terms has a different connotation and is used in a particular sense, and it is difficult to believe that their Lordships, when they meant gross receipts, used the term ' mesne profits'. Mr. Venkataramana Rao suggests that there are some judgments where these expressions are treated as convertible terms; but surely that does not justify us in holding that there has been a similar lapse on the part of the Judicial Committee. In their ordinary and popular sense the two words ' receipts ' and ' profits ' are very different expressions. Profits, as has been repeatedly pointed out, are the surplus by which the receipts exceed the expenditure. See Russell v. Town and County Bank (1888) 13 A.C. 418 and Gresham Life Assurance Society v. Styles (1892) A.C. 309. In the last mentioned case Lord Herschell observes:

Whether there be such a thing as profit or gain can only be ascertained by setting against the receipts the expenditure or obligations to which they have given rise.

19. In Hurro Durga Chowdhrani v. Surut Sundari Debi Sir Barnes Peacock defines what mesne profits are:

Now that depends really upon the question what was the meaning of the term ' mesne profits'. In their Lordships' opinion, the amount which might have been received from the land, deducting the collection charges, was the profits of the land.

20. Lastly, the conduct of the plaintiffs themselves shows that they did not understand the term as equivalent to gross receipts. Even in their latest execution petition, they claimed the net profits and not gross receipts, and filed particulars showing how the amount they claimed was arrived at. Some time later they applied by way of amendment to be allowed to correct mesne profits into gross receipts. I have not the slightest doubt that this contention of the plaintiffs must be rejected as being wholly untenable.

21. The only other point taken in this appeal is that the Judge should have disallowed the collection charges for the whole period of the accounting on the ground that the defendant's trespass was of an aggravated nature. I have already shown in the connected appeal that this contention is untenable.

22. In the result, the appeal fails and is dismissed, and we direct the appellants (plaintiffs) to pay the costs of the 4th defendant, which we fix at Rs. 4,000.

Reilly, J.

23. I agree.

24. C.R.P. No. 626 of 1930. Venkatasnbba Rao, J.--This Civil Revision Petition has been heard along with the appeals, which we have just disposed of. The plaintiffs applied by E. A. No. 120 of 1928 for leave to amend their execution petition (E. P. No. 63 of 1924). The order now attacked was made by the learned Judge on the 26th August, 1929, i.e., the same day when he delivered judgment in the main petition. That order runs thus:

The execution petition, E. P. No. 63 of 1924, has been allowed to-day. Though this matter seems to arise in execution, inasmuch as it covers a large amount and must involve intricate questions of law and fact, this will be filed as a suit subsequent to payment of court-fees, etc., by the petitioner. Time one month.

25. This order, it will be observed, allows the proceeding to be treated as a suit. We shall consider presently the question whether the learned Judge was right in converting the application into a suit. The first point, however, that has to be determined is, was the Lower Court justified in entertaining the plaintiffs' application at all? The answer depends upon the correct view to be taken of the nature of the relief claimed in it. The plaintiffs filed an affidavit in support of their petition, and in that they claimed not only the premia but also compensation or loss sustained by them on account of the alleged wrongful conduct of the defendant. The conduct that is stated to be wrongful is thus described:

After the possession of the taluk was taken in December, 1924, it was discovered that in a number of cases the judgment-debtor, who in law was merely a trespasser from the date of the tender of the money in 1914 and had therefore no power or authority to make fresh assignment of lands to the ryots which a landholder alone could do under the Estates Land Act, has acted fraudulently and dishonestly and has let into possession of unoccupied lands a number of tenants who now claim rights of occupancy.

26. Mr. Venkataramana Rao, the plaintiffs' learned Counsel, contends that this petition relates to two distinct matters: first, the premia that were either collected or might with ordinary diligence have been collected and secondly, the loss sustained by the value of the property being impaired on account of occupancy rights having been unlawfully conferred. We think, on a proper reading, the petition comprises these two distinct claims as contended. It is not for us now to consider whether the plaintiffs' claims are in law sustainable or whether any relief can be ultimately granted to them. But each of the two claims, to which the petition relates, must be considered separately ; and the plaintiffs' request, in so far as it related to the premia, should in our opinion not have been granted by the Lower Court. In the first place, the plaintiffs, when they filed E. P. No. 63 of 1924, expressly reserved their claim to the premia to a future proceeding. Secondly, the application in question was made at a very late stage. It was filed after the expiry of four years from the date of the original execution petition. There was a prolonged inquiry before the Commissioner regarding the mesne profits, and even that inquiry came almost to a close. It was seven months after the conclusion of the taking of the evidence that the application was made; and all that remained to be done was for the Commissioner to submit his report. It has not been seriously disputed that premia are a part of mesne profits. That being so, the plaintiffs cannot reasonably ask that a fresh inquiry should now be held for the purpose of deciding to what additional profits, if any, they are entitled.

27. But then their claim in respect of the alleged loss stands on a different footing, and is not in any way connected with the mesne profits. Under the decree of the Privy Council they were entitled to recover possession as well as mesne profits. In E. P. No. 63 of 1924, which they filed in the Lower Court for enforcing that decree, they prayed inter alia for two reliefs: (i) for being placed in possession of the properties, and (m) for an inquiry being held as to the mesne profits. In execution they obtained * possession of the property and then discovered (so they allege) that its value had been greatly impaired. Mr. Venkataramana Rao's argument may be thus put: When a decree awards a person a certain property, he is entitled to get it in the state in which it was when that decree was passed; and whether, when the property was delivered, it continued to be in the same state or in the meantime underwent deterioration is a question to be determined in execution. We think this argument is well founded. This very point arose for decision in Hari Shridhar Prabhu Desai v. Sakharam Padntanna Magdum : AIR1923Bom391 and the following passage contains in our opinion a correct statement of the law:

But we think that the question with regard to the waste committed by the judgment-debtor after decree was a question arising between the parties relating to the execution, discharge or satisfaction of the decree, and must be determined by the Court executing the decree, and not by a separate suit. The appellant is entitled under the decree to the property of which possession was directed to be given to him. If the property has depreciated in value or been damaged since the decree, owing to the wilful action of the defendants, it is a question in execution whether the defendants are liable to make good the loss.

28. This case was followed by another Bench of the same Court in Bai Lalbu v. Mohanlal : AIR1925Bom385 . The question is whether a successful party can be said to get possession of what was directed to be given to him by the decree, if the property, while in the opponent's possession, suffered deterioration by damage subsequent to the decree; and whether a claim to compensation is well-founded or not is a matter that should be considered in execution under Section 47 of the Code of Civil Procedure. A different view was no doubt taken in Ramu Shettithi v. Maniappu Shettithi (1916) 33 I.C. 520. The point was there disposed of in a brief sentence, and no reasons were given in support of the view taken. The learned Judges purport to rely upon Becharam Paul v. Bhugwan Chunder Ghose (1879) 5 C.L.R. 522, which on examination does not support their conclusion. We therefore think that both in principle and on authority the plaintiffs' contention must be upheld.

29. Then remains the question, if that is a matter coming within Section 47, was the Lower Court justified in directing the proceeding to be converted into a suit? The same point was considered recently in Seetharaman Chettiar v. Chidambaram Chettair I.L.R. (1932) 56 Mad. 447 : 63 M.L.J. 941 and we there held that Section 47(1) is mandatory and, in regard to a matter that properly falls under that section, the Court is bound to decide it in execution and has no discretion whether or not to refer the parties to a separate suit. It is unnecessary to restate our reasons for this view, and we hold that the order of the Lower Court directing the proceeding to be converted into a suit was wrongly made and must be set aside.

30. There is one other matter to which we must refer. The petition, we have said, must be confined to the loss alleged to have been sustained by the plaintiffs. But should they be permitted to claim that loss by being allowed to amend the original execution petition There is no reason why in the circumstances we have set forth that indulgence should be granted to the plaintiffs. When this was pointed out, Mr. Venkataramana Rao says that he has no objection to this amendment petition being treated as an independent proceeding. Treating it in that way, we must hold that the Lower Court has not properly disposed of it, and we now remand it for proper disposal in the light of our observations.

Reilly, J.

31. I agree.

32. The learned Advocate-General represents that his client has various contentions, including one of limitation, to raise in connection with this remanded application. Those contentions we have not considered.

33. We make no order as to costs.

34. C.M.As. Nos. 362 of 1929, etc., posted for being spoken to.--These cases at the request of Counsel are now posted for being spoken to. The first point raised is that we should have found the amount due on the date of the Lower Court's order and not, as we did, on the date of our judgment. This contention is in our opinion well founded, and we therefore direct that the account shall be made up as on 26th August, 1929, the date of the order of the Lower Court. In the table annexed to our judgment for the words 'to this day' must therefore be substituted the words 'to 26th August, 1929'. The aggregate balance due on that date shall carry interest at 6 per cent, per annum.

35. The next point relates to interest upon Rs. 7,000--the mesne profits for fasli 1334. We direct that this sum shall carry interest at 6 percent per annum from 1st December, 1924 to 26th August, 1929. In arriving at the aggregate balance due on 26th August, 1929, this sum with interest as aforesaid shall also be taken into account.

36. The learned Advocate-General contends that we should allow interest on the sum of Rs. 1,62,400 from 27th July, 1921. We referred in our judgment to a similar contention, but the interest then claimed was from an earlier date, namely, 5th March, 1919. The learned Counsel points out that he has now chosen 27th July, 1921, as, in an execution petition filed on that date, his clients were given credit for this sum of Rs. 1,62,400. The argument seems to be that the act of the opposite party amounts to an admission that interest runs from that date. As we pointed out in our judgment, we are guided by the terms of the order of His Majesty in Council which we are carrying into effect, and under that order the sum of Rs. 1,62,400 carries interest only from the 1st September, 1914 to the 5th March, 1919. In the absence of any direction that the amount should carry interest for any subsequent period, we cannot allow it. The fact that, before the rights of the parties were ultimately settled by the final order in Council, the amount was credited in the execution petition in accordance with the High Court's judgment then in force makes in our opinion no difference.

37. Lastly, it is now brought to our notice that the plaintiff drew the following sums subsequent to the Lower Court's order; part-satisfaction to that extent is recorded:

(1) Rs. 2,50,000 on 6th September, 1929.

(2) Rs. 83,382 on 22nd August, 1930.


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