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Puran Chand and ors. Vs. Roy Radha Kishen - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal132
AppellantPuran Chand and ors.
RespondentRoy Radha Kishen
Cases Referred and Vithal Janardan v. Vithojirav Putlajirav I.L.R.
Excerpt:
mesne profits, application for ascertainment of - limitation act (xv of 1877), articles 178 and 179--code of civil procedure act (xiv of 1882), sections 211 and 212. - .....a decree on the 31st may 1884 for possession of certain lands, with a direction that the amount of mesne profits should he ascertained in execution of the decree. an application for execution was made on the 22nd june 1886 in regard to the immoveable property. it was renewed on the 27th may 1887, and on the 17th of august of that year, possession of the real property was delivered to the appellants. the costs of the suit were also realized. in the applications of june 1886 and may 1887, the appellants also asked that the mesne profits might be ascertained according to the direction in the decree. another application to the same effect was made on the 3rd august 1889 and was met by the objection that no mesne profits had been awarded by the decree. this objection was overruled, and, on.....
Judgment:

W. Comer Petheram, C.J., Prinsep, Pigot, O'Kinealy and Ghosh, JJ.

1. It appears that the appellants in this case obtained a decree on the 31st May 1884 for possession of certain lands, with a direction that the amount of mesne profits should he ascertained in execution of the decree. An application for execution was made on the 22nd June 1886 in regard to the immoveable property. It was renewed on the 27th May 1887, and on the 17th of August of that year, possession of the real property was delivered to the appellants. The costs of the suit were also realized. In the applications of June 1886 and May 1887, the appellants also asked that the mesne profits might be ascertained according to the direction in the decree. Another application to the same effect was made on the 3rd August 1889 and was met by the objection that no mesne profits had been awarded by the decree. This objection was overruled, and, on the 19th July 1890, the decree-holders applied to have the mesne profits ascertained. The judgment-debtor then objected that the application was barred, and, in support of that objection, he cited the case of Anando Kishore Dass Bakshi v. Anando Kishore Bose I.L.R. 14 Cal. 50 which decided that all applications of that nature fell within Article 178, Schedule II of the Limitation Act, and were barred if not made within three years from the delivery of possession of the lands decreed. This objection was overruled by the first Court, but was given effect to in the Court of First Appeal. The appellants, dissatisfied with that decision, brought a second appeal in this Court, and the Judges of the Divisional Bench who heard the appeal, dissenting from the decision already referred to, referred the following question for the decision of a Full Bench: 'Whether an application to ascertain the amount of mesne profits awarded by a decree in accordance with the provisions of Sections 211 or 212 of the Code of Civil Procedure is, as regards limitation, to be governed by Article 178 or by Article 179 of the Limitation Act'

2. Sections 211 and 212 of the present Procedure Code correspond to Sections 196 and 197 of Act VIII of 1859. In order to determine the question referred to the Full Bench, we must first consider the form of the order. No time is stated in the order as to the period for which mesne profits should be calculated; but, in the subsequent applications for mesne profits made by the appellants, the order was always treated as an order for mesne profits from the date of suit to the date of obtaining possession. This view of the order may be supported by the judgment of their Lordships of the Privy Council in the case of Fakharuddin Mahomed Ahsan Chowdhry v. The Official Trustee of Bengal L.R. 8 I. A. 197. We shall therefore take it, for the purposes of the decision of this case, that the meaning of the present order regarding wasilut is that wasilut should be calculated from the institution of the suit to the date of obtaining possession. The object of the Legislature in enacting Section 211 appears to have been the prevention of unnecessary litigation and multiplicity of suits, and for this purpose they empowered the Courts to give, with the possession of the real property such wasilut as they thought the plaintiff would be entitled to by law. The proceedings, therefore, in determining the amount of wasilut are not proceedings in execution of a decree in regard to any fixed sum, but merely a continuation of the original suit and carried on in the same way as if a single suit were brought for mesne profits by itself. This has been the view accepted by this High Court in the cases of Fuzeelun v. Syud Keramat Hossein 21 W.R. 212 Bunsse Singh v. Mirza Nuzuf Ali Beg 22 W.R. 328 Dildar Hossein v. Mujeedunnissa I.L.R. 4 Cal. 629 and Anundo Kishore Dass Bakshi v. Anando Kishore Bose I.L.R. 14 Cal. 50. We must therefore take it as settled law, so far as this Court is concerned, that an order and decree in this case referring to mesne profits is in the nature of an interlocutory order, and that there is nothing that can be executed under Section 255 of the Code until the actual amount of mesne profits has been found and determined--Radha Prasad Singh v. Lal Sahab Rai 11. L.R. 13 All. 53 (65).

3. Nor is the question, if any, and, if so what limitation applies to applications to have mesne profits assessed, devoid of authority. In the case of Fuzeelun v. Syud Keramut Hossein 21 W.R. 212 it was argued that applications asking the Court to assess mesne profits were governed by Section 20 of Act XIV of 1859 which was the Limitation Act then in force. That section ran as follows: 'No process of execution shall issue from any Court not established by Royal Charter to enforce any judgment, decree, or order of such Court, unless some proceeding shall have been taken to enforce such judgment, decree, or order, or to keep the same in force within three years next preceding the application for such execution.'

4. That contention was overruled, and it was decided that there was no bar to proceedings for assessment of mesne profits arising out of the Limitation Act. This decision was followed in the case of Bunsee Singh v. Mirza Nuzuf Ali Beg 22 W.R. 328 and this latter decision was approved of in the case of Dildar Hossein v. Mujeedunnissa I.L.R. 4 Cal. 629; and made applicable to decrees passed under Section 197 of Act VIII of 1859 which corresponds to Section 212 of the present Code. Thus it is clear that the view which prevailed till the decision of the case of Anundo Kishore Dass Bakshi v. Anundo Kishore Bose I.L.R. 14 Cal. 50 was that proceedings under Sections 196 and 197 of Act VIII of 1859 were proceedings similar to those in a regular suit not governed by the Limitation Act at all, although it had been argued that Section 20 of that Act, which more or less corresponds with Article of the present Limitation Act, applied. The case of Anundo Kishore Dass Bakshi v. Anundo Kishore Bose I.L.R. 14 Cal. 50 was one under the present Civil Procedure Code, and the Judges who decided it in no way dissented from the opinion of the previous Courts in so far as Article 179 of the Limitation Act was concerned; but, dissenting from the decision in the case of Baroda Sundari Dabia v. Fergusson 11 C.L.R. 17 they decided that Article 178 of Schedule II of the Limitation Act applied to applications under Section 211 of the Code. Article 178 runs as follows: 'Applications for which no period of limitation is provided elsewhere in this schedule, or by the Code of Civil Procedure, Section 230,--three years from the time when the right to apply accrues.'

5. In the case of Govind Chunder Goswami v. Rungunmoney I.L.R. 6 Cal. 60 it was pointed out that where general words are used, those words must be construed with some limitation; that the article was not intended to govern applications for transfer of cases from one Court to another or to transfer a case to the bottom of the board, or to applications for change of attorneys or other applications of that nature. The same principle was laid down in the case of Kylasa Goundan v. Ramasami Ayyan I.L.R. 4 Mad. 172 and Vithal Janardan v. Vithojirav Putlajirav I.L.R. 6 Bom. 586 in which it was held that to make the provisions of Article 178 applicable, the application must be of such a nature that the Court would not be bound to exercise the powers desired by the applicant without such an application being made. There are numerous sections in the Code which direct that for certain relief, an application must be made; but there is nothing in the Code compelling a person having the conduct of a pending suit to make formal applications from time to time, asking the Court to proceed to judgment. The form of procedure and the manner of dealing with suits is amply provided for by the Code. In the present case, so far as we can see, the Court was bound, on the oral applications of the appellants' pleader, indeed without any such application at all, to fix a date for the first hearing of the enquiry, and after hearing the parties and fixing such issues as might be necessary for the disposal of the subject-matter in dispute, to proceed with it as if it were dealing with a case based on a plaint. Upon the dates of the previous applications made for execution of the decree, and having regard to nature of them, we think that the applications, were Article 178 or 179 applicable, would not have been barred. But upon the question referred to us, we think the conclusion must be that neither Article 178 nor Article 179 of the Limitation Act is applicable, that the application is not barred, and that this appeal must be decreed with costs.


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