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Raja Narendra Lal Khan Vs. Bomkesh Mitter and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal184,53Ind.Cas.227
AppellantRaja Narendra Lal Khan
RespondentBomkesh Mitter and ors.
Cases ReferredIn Harmanoje Narain Singh v. Ramprasad Singh
Excerpt:
decree awarding compensation, construction of - decree silent as to interest--interest, whether can be allowed--compensation, amount of, when to be ascertained--execution of decree--duty of executing court. - .....however, been contended before us that it is unnecessary to make any order awarding interest on mesne profits, as the expression mesne profits under section 2, clause (12), of the civil procedure code includes interest on such profits, and reliance has been placed on the decision of the judicial committee in girish chunder lahiri v. shoshi shikhareswar roy (1).7. that case, however, is clearly distinguishable from the facts of the present case. there, the decree directed that the plaintiff would get mesne profits for the period of dispossession and that the mesne profits should be ascertained on inquiry at the time of the execution of the decree. the commissioner appointed to ascertain the amount of mesne profits disallowed interest the subordinate judge awarded interest on the mesne.....
Judgment:

1. This appeal arises out of proceedings in execution of a decree, and the question involved in the appeal is whether the decree-holder, who is the appellant before up, is entitled to interest on the amount of compensation for which he obtained a decree against the respondent.

2. The decree in the original suit was dated the 30th November 1911 and the portion of it which deals with the question of compensation runs as follows: 'The defendants are further directed to pay to the plaintiff compensation at the rate of Rs. 1,235 per annum from 17th August 1917 up to the date of institution of the suit and after that till delivery of possession to the plaintiff and that the sum of Rs. 1,606-9-6 be paid by defendants to plaintiff on account of the costs of this suit with interest thereon at the rate of 6 percent per annum from this date to date of realisation.' When the decree-holder applied for execution of the decree for the amount of compensation and costs, the judgment-debtors objected on the ground that they were entitled to certain deductions on account of Municipal taxes paid by them in respect of the property and that they were not liable to pay any compensation subsequent to the date on which they gave up possession. These objections were upheld by the High Court on appeal.

3. This had the effect of reducing the amount due to the decree-holder and when the decree-holder again applied for execution, he claimed interest on the amount of compensation. The judgment debtors objected that under the decree the decree-holder was not entitled to any interest. The J Court below allowed the objection, and the decree-holder has appealed to this Court.

4. It is contended before us that upon & proper construction of the decree, the decree-holder is entitled to interest on the amount of compensation. This argument is based upon the ground that the words with interest thereon' in the portion of the decree which we have set out above, have reference not only to the costs of the suit but also to the compensation at the rate of Rs. 1,265 per annum.

5. We think, however, that that is not the proper interpretation to be put upon the decree. The first portion of the passage we have quoted above from the decree deals with the amount of compensation which is to be at the rate of Rs. 1,265 per annum, and then the decree provides for the payment by the defendant to the plaintiff of the sum of Rs. 1,606-9-6 on account of the costs of the suit and the words with interest thereon at the rate of 6 percent per annum', which follow, have reference to the costs of the suit which immediately precede the words. We are of opinion that the decree did not award any interest on the amount of compensation.

6. It has, however, been contended before us that it is unnecessary to make any order awarding interest on mesne profits, as the expression mesne profits under Section 2, Clause (12), of the Civil Procedure Code includes interest on such profits, and reliance has been placed on the decision of the Judicial Committee in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy (1).

7. That case, however, is clearly distinguishable from the facts of the present case. There, the decree directed that the plaintiff would get mesne profits for the period of dispossession and that the mesne profits should be ascertained on inquiry at the time of the execution of the decree. The Commissioner appointed to ascertain the amount of mesne profits disallowed interest The Subordinate Judge awarded interest on the mesne profits but on appeal the High Court reversed the decision of the Court of first instance so far as the interest on the profits was concerned. The Judicial Committee observed as follows: 'The learned Judges say that the Court has still jurisdiction to give or refuse interest as it chooses. Their Lordships agree, because mesne profits are in the nature of damages which be Court may mould according to the justice of the case.....Its obvious effect (of the alteration made in Section 211 of Act XIV 1882 corresponding to Section 2, Clause (12), of the present Code) is to provide that a simple decree for mesne profits shall carry interest on them.....If the Court does not intend to give interest, it should say so.' As already stated, in that case mesne profits were left to be ascertained in execution and the decree for mesne profits' carried interest on such profits having regard to the definition of the expression in the code.

8. In the present case the amount of compensation (the Court has not used the expression 'mesne profits' either in the original decree or in any subsequent proceedings) which the decree-bolder was to get under the decree was fixed by the Court at Rs 1,265 per annum. The amount of compensation, therefore, was not liable to be ascertained thereafter, except in so far as the period was concerned. We think, therefore, that the definition of the expression 'mesne profits' in the Code or the decision of the Judicial Committee in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy (1) does not help the appellant.

9. In Harmanoje Narain Singh v. Ramprasad Singh 6 C. L. J. 462 at pp. 470, 471, after referring to the decision of the Judicial Committee, the learned Judges (Mookerjee and Holmwood, JJ.) say: 'But these oases do not 1 lay down that if the Court which ascertains the mesne profits has omitted to allow interest, it is open to the Court which executes the decree for mesne profits to allow interest in execution proceedings. It, is an elementary principle that the Court which executes a decree must execute it J as it stands. Besides, there is no rule which makes it obligatory upon the Court to allow interest on mesne profits; it is a matter of judicial discretion, to be exercised according to the circumstances of the case. If, therefore, the Court which assessed mesne profits improperly exercised its discretion and disallowed interest in erroneous grounds, the remedy of the decree-holders was by way of an appeal.

10. They cannot now claim interest when the decree for mesne profits is silent as to interest.'

11. We agree in the above observations.

12. It is contended that the judgment-debtors themselves having appealed in execution proceedings and got the decree of the Court of first instance varied by the High Court, cannot contend that the amount of compensation was definitely fixed by the original decree in the suit. But the decree was varied by the High Court only to this extent, namely, that the period for which the mesne profits were to be allowed, was fixed, and secondly that the judgment-debtors were allowed a deduction on account of certain monthly taxes, in respect of the property, which was payable by the decree-holder. How-ever that may be, we do not think that that in any way affects the question of interest.

13. It is to be observed that it was not until the High Court's order in the execution proceeding was passed, that the decree-holder claimed any interest on the amount of compensation. Although the mere omission to claim such interest originally does not stand in his way if he is entitled to it under the decree, we think that this indicates that all parties understood that the decree did not allow interest on the amount of compensation.

14. For all these reasons we are of opinion that the appeal must fail and it is accordingly dismissed with costs, five gold mohurs.


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