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Luckhy NaraIn Vs. Kally Puddo Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal882
AppellantLuckhy Narain
RespondentKally Puddo Banerjee
Cases ReferredAlexander Rodger v. The Comptoir
Excerpt:
mesne profits, interest on - principle on which they should be assessed. - .....as he has proceeded upon a wrong principle. it seems that some accounts were filed by the decree-holder showing the rents payable by the farmers of the estate under the arrangement subsisting before the dispossession; but they have not been sent up to this court. probably they have by mistake remained in the lower court. the principle upon which wasilat should be estimated in this case is to ascertain from the decree-holder what sum he has realized in respect of the 7-anna share which remained in his possession during the years for which wasilat is claimed, and on a comparison of his account as to that 7-anna, it will be easy to fix the proportionate amount due upon the 9-anna share from which he was dispossessed under the decree of this court. the judge remarks that 'the point.....
Judgment:

Birch, J.

1. In this case we think that the order of the Judge cannot be supported, as he has proceeded upon a wrong principle. It seems that some accounts were filed by the decree-holder showing the rents payable by the farmers of the estate under the arrangement subsisting before the dispossession; but they have not been sent up to this Court. Probably they have by mistake remained in the lower Court. The principle upon which wasilat should be estimated in this case is to ascertain from the decree-holder what sum he has realized in respect of the 7-anna share which remained in his possession during the years for which wasilat is claimed, and on a comparison of his account as to that 7-anna, it will be easy to fix the proportionate amount due upon the 9-anna share from which he was dispossessed under the decree of this Court. The Judge remarks that 'the point he has to consider is not what the decree-holder might by another course of management have realized during the period in question, but what the party in wrongful possession did really realize or might by good management have realized.' In this view we cannot agree with the Judge. What he has to consider is what the decree-holder would have realized had the arrangement prevailing at the time of dispossession subsisted all along, and upon that he would estimate wasilat. In this view of the case the question regarding the allowance of collection charges will not arise.

2. There is a further prayer that interest may be allowed on the wasilat. On this point the Judge says: 'I do not think it is within my power to award such interest, and I accordingly reject this part of the claim.' In this view also we think the Judge is wrong. The question of allowing interest upon mesne profits has often been decided by the Courts in this country, and has also come under the consideration of their Lordships in the Privy Council. One decision to which we have been referred is the case of Hurropersaud Roy v. Shamapersaud Roy (I.L.R., 3 Calc., 654); and there is another case--Alexander Rodger v. The Comptoir d' Escompte de Paris and the Chartered Bank of India, Australia, and China (L.R., 3 P.C., 465)--in which the following remarks are made: 'It is contended on the part of the respondents here that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the petitioners, and that the perfect judicial determination, which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons, who have had their money improperly taken from them, have the money restored to them with interest during the time that the money has been withheld. Their Lordships have reason to believe that the practice of the Courts in India, where there has been a reversal in this country, and when money has been ordered in India to be paid back in consequence of that reversal, is to order the payment of interest. Their Lordships, therefore, so far as any precedents applicable to the case are concerned, believe that the precedents will be found to be in favour of a restitution of the money with interest.'

3. The case must go back to the Judge that he may reconsider it with reference to the above remarks. The appellant is entitled to his costs of this appeal.


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