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Sri Rajah Row Venkata Kumara Mahipati Surya Rao Bahadur Garu, by His Authorized Agent M. Subbarayadu Garu Vs. Sri Rajah Rao Subbayamma Rao Bahadur Garu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in24Ind.Cas.484
AppellantSri Rajah Row Venkata Kumara Mahipati Surya Rao Bahadur Garu, by His Authorized Agent M. Subbarayadu
RespondentSri Rajah Rao Subbayamma Rao Bahadur Garu
Cases ReferredTrailokya Nath Ray Chaudhuri v. Jogendra Nath Ray
Excerpt:
civil procedure code - (act xiv of 1882) section 211--decree awarding mesne profits-period not prescribed--decree to be construed awarding mesne profits for 3 years--application for mesne profits beyond s years--treated as suit--order--decree appealable--civil procedure code (act v of 1908), section 47. - - it has been argued that no appeal lies from this order, but it is clearly passed under section 47 and is, therefore, within section 2(2) of the code which defines a decree......to obviate the injustice caused to parties by a mistake in the initiation of proceedings, and enables a court to treat an application as a suit, or a suit as an application. it does not enable one proceeding to be treated as both suit and application, which has been done in this case. the order allowing the execution application to be filed as a plaint is set aside and this appeal is allowed with costs.
Judgment:

1. The decree in this case, dated the 5th September 1900, did not prescribe a period for the calculation of mesne profits as directed by Section 211 of the Civil Procedure Code of 1882. It has been held that in such a case the decree must be construed as awarding mesne profits for three years from the date of the decree [Uttamram v. Kishordas 24 B.K 149 : 1 Bom.L.R. 638, Trailokya Nath Ray Chaudhuri v. Jogendra Nath Ray 35 C.P 1017 because the grant of any further sum would be beyond the jurisdiction of the Court : and we think that the same construction must be put upon this decree.

2. The decree-holder applied in execution for mesne profits beyond the period of three years, and the Subordinate Judge properly allowed mesne profits only for Fasli 1316, and held that he could give no relief upon the application as regards the subsequent faslis. However, on the ground that a suit for part of these faslis would be barred, he converted the proceedings into a suit, under Section 47 of the Code of 1908, and passed an order for payment of the amount for these faslis. When the Court had held that this amount was not included in the decree, there was no further question relating to the execution of the decree, which could be determined under Section 47 of the Code of 1908. The lower Court has, however, held that the question of payment of this amount fell within that section, and that it had jurisdiction to treat the execution application as a suit, and proceeded to pass all order under Section 47(2) of the Code. It has been argued that no appeal lies from this order, but it is clearly passed under Section 47 and is, therefore, within Section 2(2) of the Code which defines a decree. The Court has determined that the question was one relating to the execution of the decree, and that it had jurisdiction to treat the application as a suit, and its order is, therefore, the determination of a question within the section. The execution application prayed for a relief to which the decree-holder was not entitled, and to that extent should have been dismissed, and there would have been thus no question relating to execution before the Court. Section 47 was intended to obviate the injustice caused to parties by a mistake in the initiation of proceedings, and enables a Court to treat an application as a suit, or a suit as an application. It does not enable one proceeding to be treated as both suit and application, which has been done in this case. The order allowing the execution application to be filed as a plaint is set aside and this appeal is allowed with costs.


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