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Girish Chander Lahiri Vs. Sasi Sekhareswar Roy - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal329
AppellantGirish Chander Lahiri
RespondentSasi Sekhareswar Roy
Cases ReferredOriental Bank Corporation v. Charriol
Excerpt:
mesne profits - execution--interest--civil procedure code (act xiv of 1882) sections 211, 559--appeal--parties--adding parties--respondents--power of appellate court to add respondent--limitation act (xv of 1877) section 22. - .....the decree-holder against an order of the subordinate judge of kajshahi determining the amount of mesne profits due by the judgment-debtors with interest thereupon. the facts of this case are set out in the judgment that we delivered on the 8th august 1902, at an earlier stage of the proceedings. it will be found that a decree was pronounced in january 1884, in favour of the decree-holder for recovery of possession of various immoveable properties with mesne profits during the period of dispossession, the amount of such mesno profits being left for determination in execution of the decree. the judgment-debtors were raja sasi sekhareswar roy, kumar kasiswar roy, kumar biseswar roy and kumar tarakeswar roy. in the course of the suit which came up before this court in appeal, it appears,.....
Judgment:

Ghose and Geidt, JJ.

1. This is an appeal by the decree-holder against an order of the Subordinate Judge of Kajshahi determining the amount of mesne profits due by the judgment-debtors with interest thereupon. The facts of this case are set out in the judgment that we delivered on the 8th August 1902, at an earlier stage of the proceedings. It will be found that a decree was pronounced in January 1884, in favour of the decree-holder for recovery of possession of various immoveable properties with mesne profits during the period of dispossession, the amount of such mesno profits being left for determination in execution of the decree. The judgment-debtors were Raja Sasi Sekhareswar Roy, Kumar Kasiswar Roy, Kumar Biseswar Roy and Kumar Tarakeswar Roy. In the course of the suit which came up before this Court in appeal, it appears, upon the record of this case, that there was a compromise between the decree-holder, on the one hand, and Kumar Kasiswar, who was apparently in possession of a sixth share of the properties involved in the suit, on the other, under which the plaintiff received a certain sum of money from Kasiswar by way of satisfaction of his claim as against that individual. But however that may be, a decree was pronounced in the terms, to which we have just adverted, in favour of the decree-holder against all the defendants in the suit. When the decree-holder applied for execution with a view to recover the amount of mesne profits due to him, a question arose between the parties, whether the decree-holder was entitled to interest upon such mesne profits year after year, as they fell due. The Court below held that the decree-holder was entitled to interest upon the mesne profits in question, and an account was prepared on the 31st March 1892, showing something like Rs. 20,000 and odd as due to the decree-holder, and an order was made by the Subordinate Judge declaring that the decree-holder was entitled to realize the said amount. The matter was, however, brought up to this Court in appeal by one of the judgment-debtors Raja Sasi Sekhareswar Roy, and in that appeal, this Court was of opinion that the decree-holder was not entitled to interest upon the mesne profits, having regard to the terms of the decree. The decree-holder then appealed to the Privy Council. The only person, however, who seems to have been made a party respondent in that appeal was Raja Sasi Sekhareswar. The Judicial Committee on the 24th March 1900, held with reference to the terms of the decree passed in the suit, that the words 'mesne profits' used therein were meant to include interest upon such mesne profits, the result being that the order of this Court to which we have Just referred was discharged, and the case was ordered to be remitted to the Subordinate Judge for reconsideration of certain points, and for a final order being made therein. Subsequently, the order of the Privy Council was transmitted to the Court below for the purpose of giving effect to it. The Subordinate Judge then prepared another account showing what was due to the decree-holder, the result being that there was another appeal preferred to this Court by the judgment-debtor Raja Sasi Sekhareswar Roy. That was an appeal, we may here mention, against two orders of the 7th May and 22nd June 1901, respectively, and as set out in pages 76 and 77 of the printed paper book in this case. The account, however, that was prepared by the Subordinate Judge included interest up to 31st March 1892 only. This Court, in the appeal to which we have just referred, went into the whole matter, and found that the decree-holder was entitled to interest upon mesne profits such as he claimed, and, in the course of the judgment that we then delivered, we expressed ourselves as follows: 'It will be found on a reference to the transcript of the case sent up to the Privy Council that the account prepared by the Sheristadar of the Subordinate Judge's Court under his directions was before the Privy Council and in two or three several places in their judgment, the Judicial Committee referred to that account, and there can be no doubt that the whole matter of the mesne profits determined by the Subordinate Judge including interest as given in the account prepared by the Sheristadar and accepted by the Subordinate Judge on the 28th April 1892 was before them; and, if so, there can be equally no doubt that the Judicial Committee approved of the order of the Subordinate Judge of the 28th April 1892, accepting the account prepared by the Sheristadar, an account which included interest on mesne profits down to 31st March 1892. Furthermore, we think that the principle upon which the judgment of the Judicial Committee proceeds upon the matter of interest is a principle, which is applicable not only to the period down to the date of the delivery of possession, but also to the period subsequent thereto down to 31st March 1892 or even later than that time. But as to this matter, we |need not express any opinion on the present occasion. We think that there is no reason to interfere with the order of the Subordinate Judge in the matter of interest.' Indeed, it will be found that the order complained against referred to interest due to the decree-holder up to 31st March 1892 only, no calculation of any kind having then been made as to interest for any subsequent period of time. Upon the present occasion, we are concerned with the interest for the subsequent period, It would appear that, though the account, so far as it went, was settled in March 1892, the judgment-debtors, or, any one of them, did not take the trouble of paying the amount found due to the decree-holder at any time antecedent to 8th September 1902 and the 21st March 1903. Upon these two dates, Raja Sasi Sekhareswar deposited the amount that had been found due upon the account previously prepared by the Court below--an account which included interest up to the 31st March 1892 only; and the question that was raised in the Court below, and which has been raised before us in this appeal, is whether the decree-holder is entitled to interest for any period subsequent to the 31st March 1892. The Subordinate Judge was of opinion that after the mesne profits with interest thereupon were ascertained by the Court in April 1892, the decree-holder was not entitled to such interest; but we fail to see why this should be so. Having regard to the principle, which underlies the decision of the Privy Council to which we have already referred, we are of opinion that the decree-holder is entitled to interest upon the mesne profits due to him, until such mesne profits are actually paid to him by the judgment-debtors. We, therefore, think that the Subordinate Judge ought to have allowed the decree-holder the interest which he claimed. We do not yet know what may be the correct amount of interest, which he is justly entitled to. It may be, as has been pointed out by one of the learned vakils on behalf of the respondents, that the figures as given in the petition presented by the decree-holder in the Court below are not correct, and that the decree-holder has calculated interest upon interest, and has also asked for interest upon costs. But these are matters with which we are not concerned in this appeal. The matter of account must be left for determination by the Court below. All that we need say is that the decree-holder is entitled to interest upon mesne profits for the period subsequent to 31st March 1892, as he has claimed.

2. There are one or two other matters to which we have next to direct our attention. The first matter is as regards the liability of the legal representatives of Kumar Kasiswar Roy. These persons, as also Kumar Tarakeswar, and the legal representatives of Kumar Bisweswar Roy, were not originally made parties to this appeal by the decree-holder, the appeal having been preferred against Raja Sasi Sekhareswar alone. When the appeal came on for hearing before us on the former occasion, an objection was raised on behalf of Raja Sasi Sekhareswar upon the score that the appeal could not proceed in the absence of the other judgment-debtors. The matter being put to the learned vakil for the appellant, he at once presented an application praying that the names of Tarakeswar and the legal representatives of Bisweswar and Kasiswar be added as party respondents, and we made the order accordingly, subject, however, to any objection that might be taken at the hearing by any of these persons. At the hearing of this appeal, it has been contended on behalf of those persons that it is too late now to add them as party respondents, having regard to the law of limitation on the subject. So far, however, as-the legal representatives of Kasiswar Roy are concerned, we need not discuss this point, for we are of opinion that the decree-holder is not entitled to any relief as against them in The present appeal. It will be remembered that a compromise was come to between Kasiswar and the decree-holder in the course of the suit before any decree was pronounced, and in none of the proceedings that were taken from time to time, was process served upon him or his legal representatives; and it does not appear that any order was made either by the Court below or by this Court in their presence; and, so far as Raja Sasi Sekhareswar and the other respondents are concerned, they did not raise any objection to the execution proceedings going on in the absence of Kumar Kasiswar Roy. Indeed, Raja Sasi Sekhareswar, in one paragraph of the petition of objection that he presented in the Court below, stated that, in the same way as the decree-holder had received a certain amount of money in respect to the share of Kasiswar, there ought to be an apportionment between him and the other judgment-debtors in respect of their respective liabilities. In these circumstances, we are of opinion that the order that we are going to pronounce in this case will not affect Kasiswar Boy, or his legal representatives, and that the order of the Court below ought not to be interfered with, if that order at all affects them.

3. Turning next to the other two persons, Bisweswar and Tarakes war, or rather their legal representatives, we find that processes were served upon them in the Court below, and evidently the order made by the Court below was an order which bound them as also Raja Sasi Sekhareswar. No doubt that order was rather to their benefit than against them; and, therefore, they were not called upon to appeal to this Court. But still the fact remains that they were made parties in the Court below, and an order was made against them jointly with Sasi Sekhareswar as to the amount of money due to the decree-holder. By some oversight or other, however, they were not made parties to the appeal when it was presented to this Court, the only person impleaded as respondent being Raja Sasi Sekhareswar. And the question here arises whether we should not now allow these two persons to be added as yarty respondents.

4. Section 559 of the Code of Civil Procedure provides' as follows: 'If it appear to the Court at the hearing that any person, who was a party to the suit in (he Court against whose decree the appeal is made, but who has not been made a party to the appeal is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.' Under this section, we have certainly the power to direct that persons such as Tarakeswar and the legal representatives of Bisweswar, who were parties to the proceedings in the Court below, but who have not been made parties to this appeal, be added as respondents. There is nothing in the Limitation Act itself, so far as we can discover, which controls our powers in the matter of allowing parties to be added as respondents, who were not made respondents at the time when the appeal was presented; and we think that it makes no difference whether the application was made by the appellant to bring in' these persons as respondents, or the Court considers it necessary for the ends of justice and with a view to enable it to make an effectual order between all the parties concerned, that they should be added as respondents. Both stand upon the same ground in principle; and, when we think, as we do think, that these persons are interested in the result of the appeal, there is no just reason why they should not be added as party respondents. The view that we have just expressed seems to be in accordance with that adopted by a Division Bench of this Court in the case of Manichya Moyee v. Boroda Prosad Mookerjee (1832) I.L.R. 9 Calc. 355 the particular passage which we have in view being found in page 362; and the same view seems to have been expressed in the case of Oriental Bank Corporation v. Charriol (1886) I.L.R. 12 Calc. 642 the particular passage being found in page 652. For these reasons, we are of opinion that Tarakeswar and the legal representatives of Bisweswar should be added as party respondents in this appeal, and we order accordingly.

5. It has, however, teen contended on behalf of these respondents that they were no party to the appeal in the Privy Council, and that the order of this Court declaring that the decree-holder was not entitled to interest upon the mesne profits still stands good so far as they are concerned. But it will be remembered that the said order of this Court was discharged by the Privy Council, and the case remitted to the Subordinate Judge for re-adjustment of the account, and a final decree made therein. All parties concerned evidently accepted this order as binding upon them, no objection being taken by any of them in the course of the subsequent proceedings, upon the score, that he was not a party to the Privy Council appeal, and therefore he was not bound by the judgment; and when the Subordinate Judge made the two orders, dated the 7th May and 22nd June 1901, determining what was considered to be due to the decree-holder from all the respondents as mesne profits with interest up to the 31st March 1892, no appeal was presented to this Court by any one of these respondents, the only party appealing being Raja Sasi Sekhareswar. We think it is now too late to raise the contention that they were no party to the Privy Council appeal.

6. The result is that the order of the Court below is set aside, and, in lieu thereof, it is ordered that the Subordinate Judge do prepare an account of the interest justly due to the decree-holder subsequent to the 31st March 1892.

7. The appellant will be entitled to his costs as against the respondents Raja Sasi Sekhareswar and Kumar Tarakeswar and the legal representatives of Bisweswar; the legal representative of Kasiswar will bear his own costs.


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