1. The Land Mortgage Bank of India is the plaintiff. The facts of the case are apparently somewhat complicated, but when they are understood, they really present no difficulty. The defendant No. 1, Shyam Chand Koondoo, was the 8-annas proprietor of a patni taluk, lot Buradakundi, arid as the result of certain litigation, to which I shall presently refer, the defendant No. 2, Durga Churn Shaha, was the proprietor of the other moiety of the same patni.
2. Durga Churn Shaha, on the 8th of March 1872, mortgaged his 8-annas share to the Bank. The mortgage debt not having been discharged, the Bank took steps upon the mortgage bond, and having obtained a decree was about to bring the 8-annas share belonging to Durga Churn Shaha to sale, when one Shoshi Bhoosan Shaha came in and preferred a claim, alleging a title in himself to half of Durga Churn Shaha's moiety, that is, a 4-annas share of the entire patni.
3. This claim was at the time successful, and in consequence the Bank, abstaining from the further execution of their decree, brought a suit to have a declaration of Durga Churn Shaha's title to the entire moiety of the patni.
4. This suit was ultimately successful; meanwhile, however, the defendant No. 1, Shyam Chand Koondoo, executed a decree against Shoshi Bhoosan Shaha, the successful objector; and having brought to sale the disputed 4-annas share of the patni taluk, himself purchased it on the 7th of June 1876.
5. The Bank being successful in the suit brought by it to have a declaration of Durga Churn Shaha's title to the disputed 4-annas share, was about to execute its original decree, but the patni was now allowed to fall into arrears of rent, and was in consequence brought to sale under the provisions of Regulation VIII of 1819.
6. This sale realized a gross sum of Rs. 26,600: deducting from this Rs. 5,019-13-3, being the amount of rent due to the zamindar, and Rs. 266-1-3, the amount of auction fees to which the Government was entitled, there remained a balance of Rs. 21,314-1-6, being the surplus sale proceeds. Of this amount, Shyam Chand Koondoo took from the Collectorate one moiety, which represented the 8-annas share of the patni, which, without dispute, belonged to him. The other moiety has been taken by the Bank, in consequence of their having successfully made out a title to Durga Churn Shaha's moiety.
7. The present suit has been brought to recover, first, mesne profits for the period during which Shoshi Bhoosan Shaha and the defendant No. 1, who subsequently purchased his interest, were in wrongful possession of the disputed 4-annas share, and also a sum of Rs. 1,254, which represents the rent due for the disputed 4-annas share during the period of arrear, in consequence of which arrear the summary sale took place under the Regulation.
8. The Bank bases its claim to the recovery of mesne profits upon the allegation that in execution of a decree the Bank purchased the right of Durga Churn Shaha, the defendant No. 2, to recover damages for the period of the wrongful possession of Shoshi Bhoosan Shaha and Shyam Chand Koondoo.
9. Upon the hearing of this appeal, it appeared to us that the cause of action thus alleged will not entitle the Bank to recover.
10. Under the provisions of Section 266 of the Code of Civil Procedure, certain property therein specified may be sold in execution of a decree for money. The proviso to that section excepts certain items, and, amongst those items, we find in Clause (e), 'mere rights to sue for damages.'
11. Now there can be no doubt that mesne profits are damages; and this being so, it appears to us that Durga Churn Shaha's right to sue for these damages could not have been sold in execution, and that therefore the plaintiff, having purchased that right, has taken nothing upon which he can base a cause of action capable of being maintained in a Court of Justice.
12. Then as to the sum of Rs. 1,254 for rent, we think that this sum also represents the profits of the property appropriated by the person in wrongful possession. No doubt the sum ought to have been paid as rent; and inasmuch as it was not paid as rent, and so never reached the hands of the zamindar, we think that the plaintiff cannot, by giving the defendant credit in that portion of his claim which is concerned with mesne profits, alter the character of this particular item of claim.
13. It has been contended before us that this particular sum ought to be regarded as representing the disputed 4-annas share of the property. No doubt, when property to which a person has successfully set up a title is sold otherwise than by private sale, pending his litigation, and surplus sale proceeds remain in the hands of the Civil Court, those surplus sale proceeds are property regarded as representing the immoveable property; but it appears to us that the present case does not fall within this principle. The sum of Rs. 1,254 never did, in the hands of the Collector, represent surplus sale proceeds, because the zamindar was entitled to take this amount out of the gross sum of Rs. 26,600 realized, and this amount is not included in, and does not constitute any portion of the remainder, Rs. 21,314-1-6, which alone, in the hands of the Collector, can be regarded as surplus sale proceeds.
14. Such are the facts of the case; but it appears to us that, although the plaintiff may have misconceived the cause of action, the equity of the case is on his side, and under these circumstances we will allow the appeal to stand over until Monday next, with a view to consider any application that may be made to us for the amendment of the plaint. We reserve the question of costs.
15. Subsequently the following order was made:
16. The respondent is allowed to amend the plaint as prayed. The case will be sent back to the Court of First Instance to be tried de novo on the plaint so amended, upon the plaintiffs paying to the defendant the costs incurred by him in all the Courts on the amount claimed, less the sum in respect of which the amendment is allowed.
17. The costs in regard to the sum as to which the amendment is allowed will abide the result of the trial hereby directed.