1. The sixth defendant, who is the mother of defendants 4 and 5, mortgaged the suit property; and upon that mortgage a suit was brought and the property sold in Court auction and purchased by the decree-holder, who is the plaintiff, on 22nd November, 1937. A suit was thereupon filed by defendants I to 4 impugning the mortgage and asserting that the sixth defendant had no authority to mortgage the property. Their suit was dismissed in the trial Court; but they carried the matter in appeal to the High Court and obtained an injunction order on 7th November, 1938, restraining the plaintiff from interfering with their possession. That injunction continued in force during the pendency of the appeal, which was ultimately dismissed. The plaintiff took delivery of the property on 12th November, 1941. He then attempted during the course of the execution to obtain mesne profits by way of restitution; but his application was dismissed, it being held that his remedy lay only by way of a separate suit. The plaintiff thereupon filed the present suit for mesne profits from 22nd November, 1937, the date when he purchased the property, to 12th November, 1941. The trial Court held that the plaintiff was entitled to mesne profits only for a period of three years prior to suit, and therefore gave him a decree for the period from 1st December, 1940, (three years prior to the date of the filing of the suit) to 12th November, 1941, the date of delivery. Both parties preferred appeals. Many points of law were raised; and the plaintiff gave many reasons why he should have been given mesne profits for a longer period. He claimed that Article 120 of the Limitation Act applied and not Article 109. He pleaded that time could also be enlarged under Sections 14 and 15 of the Limitation Act, and finally asked the Court to admit as additional evidence the counter filed by defendants 1 to 4 in the execution proceedings. The Court admitted this additional evidence and allowed an amendment of the plaint, and while rejecting arguments with regard to the applicability of Section 14 and Article 120 of the Limitation Act to the facts of the case, held that the plaintiff was entitled to invoke Section 15 of the Limitation Act and that the counter marked as Ex. P-12 amounted to an acknowledgment; and so gave the plaintiff a decree for the period from 7th November, 1938, the date of the order of injunction passed by this Court, up to the date of delivery.
2. It is argued in this Court that the lower appellate Court was wrong in applying Section 15 of the Limitation Act and in permitting Ex, P-12 to be marked, and that even if Ex. P-12 was properly marked, the recitals therein did not amount to an acknowledgment.
3. It is clear that Section 15 of the Limitation Act does not in so many words apply to the facts of the case; for the institution of the present suit was certainly not stayed by the injunction order in question. That order was merely made to avoid any inconvenience that might arise by permitting the execution of the decree to proceed while the appeal in this Court was still pending. The lower Court relied on an observation of Sadasiva Aiyar, J., in Muthukorakkai Chetty v. Madar Ammal (1919) 38 M.L.J. 1 : I.L.R. 43 Mad. 185, which was approved in D. Narain Roy v. Jogesh Chandra De : AIR1924Cal600 , in these words:
Whenever proceedings are being conducted between the parties bonafide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities.
In Muthukorakkai Chetty v. Madar Ammal (1919) 38 M.L.J. 1 : I.L.R. 43 Mad. 185, this question did not directly arise. The point that had to be considered was one of limitation in a proceeding to set aside a sale on the ground of fraud, instituted after the confirmation of the sale had been ordered. The majority of the learned Judges were of opinion that although an order for confirmation of the sale was passed; yet on account of the pendency of the proceedings to set aside the sale, the confirmation did not really take place until those proceedings had terminated. Sadasiva Aiyar, J., was however of opinion that the order of confirmation was in a state of suspension pending the other proceedings. In other words, he was of opinion that on some equitable grounds not strictly covered by Section 15 of the Limitation Act, the period during which a bona fide litigation was pending could be excluded. Dealing with the argument that a suit could, nevertheless, have been filed, he said that the filing of such a suit was futile and unnecessary. The argument that a suit was futile and unnecessary was considered by another Full Bench of this Court in Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490 in which the dictum of Sadasiva Aiyar, J., did not meet with approval. Jackson, J., with whom Sundaram Chetti, J., concurred, said:
If the application is one which must be made in order to save the bar of limitation it is neither futile nor unnecessary.
4. This criticism of Sadasiva Aiyar, J.'s dictum received the approval of the Privy Council in Narayan Jivan Gouda Patil v. Puttabi (1944) 3 M.L.J. 358. Their Lordships were considering a matter arising out of a suit for injunction. During the pendency of the suit, an order of temporary injunction was passed. The defendant set up a case of adoption which was not accepted by any of the Courts in India; but their Lordships of the Privy Council held that the defendant had proved his case. The defendant thereupon attempted to obtain possession under Section 144, Civil Procedure Code and was met with the plea that his claim was barred by limitation. The matter came before their Lordships again in appeal arising out of the Section 144 proceedings; and it was held by them that the lower Courts had rightly found that the suit was barred by limitation. They further held that the period of limitation could not be enlarged by Section 15 of the Limitation Act. The last but one paragraph in the judgment of their Lordships ends with this passage:
Their Lordships are unable to appreciate this point, for the institution of a suit can never be said to be futile, if it would thereby prevent the running of limitation.
5. On the question of the Article of the Limitation Act to be applied, the learned Counsel for the plaintiff contends that the possession of the defendants was not unlawful; because their possession was one which was permitted by the Court. Whatever decision may ultimately have been reached by the Court, it is argued, as long as the suit was pending and there was an uncertainty who was in rightful possession, it could not be said that any of the parties was in wrongful possession.
It is difficult to appreciate this argument. If, for example, a person trespassed on another's property and the person dispossessed filed a suit for ejectment, pleading rightly that the defendant was in wrongful possession because he had trespassed on the property, could it be said that by the filing of the suit the wrongful possession of the defendant was converted into rightful possession I find in none of the authorities cited before me any support for such an argument. The learned advocate for the plaintiff however relies on certain remarks of Pandrang Row, J., in Sundararaja Ayyar v. Raghava Reddi (1936) 43 L.W. 706 to this effect:
As regards the next point, it is urged by the advocate for the first defendant-respondent that Article 109 governs the present suit on the ground that his possession after the date of the preliminary decree continued to be or was wrongful. I am unable to accept this contention; for there can be no doubt that up to the decree and even during the appeal, his case was that possession was lawful, being based on a valid title acquired by him from the father of the plaintiff. Such possession cannot be said to be wrongful. Alter the decrees of the Courts by which it was held that he was entitled only to one-fourth of the property, his possession could not necessarily be deemed to be wrongful, for as a co-owner he could be lawfully in possession of the property on behalf of himself and other co-owners.
In reading this passage we must bear in mind the facts of that particular case, in which the person who had been in possession of the whole was entitled to possession of the whole as a joint owner; and his possession therefore could not be wrongful. I am not prepared to read this passage of the learned Judge as meaning that because a suit was pending and the Court could not know whose possession was rightful, any possession by any party during the pendency of the suit was rightful. In Sitaramaswami v. Mahalakshmamma : AIR1936Mad170 , Wadsworth, J., held that the agreement between the parties made the party in possession a receiver, and that therefore his possession was on behalf of the rightful owner and could not in itself be wrongful. Clearly that case has no application to the facts of the present case.
6. The only other question for consideration is whether Exhibit P-12 was rightly admitted in evidence by the appellate Court; and if so, whether any part of it amounts to an acknowledgment of liability for mesne profits. On the first point, it is argued that this document could not have been admitted under any of the clauses of Order 41, Rule 27. The plaintiff did not, it is said, give any good reason for not having filed the application in the trial Court and the appellate Judge did not state that it was required by him in order to fill some lacuna in the evidence. Further, the learned appellate Judge gave no reasons, as he was bound to do under Rule 27(2), for admitting the document. The questions of admitting this document and of permitting the amendment of the plaint were raised at the same time; but the discussion of the lower appellate Court related only to the question whether the plaintiff should be allowed to amend his plaint so as to base his claim on the acknowledgment as well as on the other cause of action. None of the parties had very much to say on the question of the admissibility of the document. It is true that the defendants filed a counter in which they stated that the document should not be admitted; but there the matter seems to have ended. It was the learned Judge's preoccupation with the question whether the plaintiff should be allowed to amend 'his plaint and the absence of arguments on the other question that were responsible for the omission to give any reasons for the admission of the additional evidence. As to the desirability of admitting this evidence, all the documents relating to the earlier suit, the injunction order passed, and the fruitless execution proceedings should have been put before the Court in this suit, which arose directly out of the execution proceedings; and it may be said therefore that the failure to file this particular counter was an oversight which the appellate Court could rectify at the appellate stage. I am not therefore prepared to say that this document was wrongly admitted.
7. As the defendants were ultimately found to be in wrongful possession and they had been allowed to remain in possession by the Court pending the appeal and had furnished security for mesne profits, they could hardly deny in their counter any liability for mesne profits; and they did not do so. They said that the question of mesne profits was not one to be considered in execution, but that a fresh suit should be filed. They went on to say in paragraph (4), with which we are immediately concerned:
These respondents will not be liable for the profits from 22nd November, 1937, (the date o purchase) as the sale was confirmed only on 18th February, 1938, and no steps for delivery of the property were taken by the petitioner at any time. In any event, they will be liable from 6th March, 1939 (the date on which the High Court confirmed the order of injunction) when the order directing these respondents to furnish security was made by the High Court in C.M.P. No. 4708 of 1938.
I agree with the lower appellate Court that this is a clear admission of liability from 6th March, 1939.
8. There are two circumstances which prevent full effect being given to this acknowledgment. One is that this acknowledgment was made on 8th December, 1942; and can therefore only be regarded as an acknowledgment of mesne profits that had not become time-barred by that date. So this acknowledgment would entitle the plaintiff to mesne profits only from 8th December, 1939. Another point to be noticed is that this counter was signed by defendants 1 to 4 and not by the fifth defendant, and would therefore not bind him. It is argued that since the whole family was then joint, the acknowledgment by defendants 1 to 4 would bind the fifth defendant also. That clearly cannot be so, since defendants 1 to 4 did not sign on behalf of the family, but on behalf of their individual selves. If the counter had been filed by the manager of the family as manager, it would perhaps have bound all the members of the family. Such was not the case. This acknowledgment therefore entitles the plaintiff to a decree for mesne profits against defendants 1 to 4 from 8th December, 1939 to 12th November, 1941, the date of delivery, and against the fifth defendant from 1st December, 1940 to 12th November, 1941, as directed in the decree of the District Munsiff.
9. The decree of the lower appellate Court will be modified as above. All parties will bear their own costs in all the three Courts.