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Hurrodurga ChowdhraIn Vs. Sharrat Soondery Dabea - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal674
AppellantHurrodurga Chowdhrain
RespondentSharrat Soondery Dabea
Cases ReferredProtap Chunder Borooah v. Ranee Surno Moyee
Excerpt:
mesne profits, decree for - ascertainment of amount--interest. - .....it is to the effect that the lower court has acted upon a wrong principle in assessing the mesne profits; that it has simply added together the totals of the rents which the ameen has found to have been paid in each year to the judgment-debtor by the ryots, and not taken into account the loss which the judgment-creditor has sustained during the long period of dispossession. in support of his argument he refers to the judgments of this court, to be found in the cases of protap chunder borooah v. ranee surno moyee (14 w.r., 151); sokhee monee debia v. brijoraj mookerjee (17 w.r., 228); and chowdhry waheed ali v. mussamut jumaye (19 w.r., 87)--the effect of which is that not merely the bare rental of each year, less the collection charges, is to be ascertained, but the actual loss.....
Judgment:

Morris, J.

1. A cross-appeal has been preferred by the decree-holder. It is to the effect that the lower Court has acted upon a wrong principle in assessing the mesne profits; that it has simply added together the totals of the rents which the ameen has found to have been paid in each year to the judgment-debtor by the ryots, and not taken into account the loss which the judgment-creditor has sustained during the long period of dispossession. In support of his argument he refers to the judgments of this Court, to be found in the cases of Protap Chunder Borooah v. Ranee Surno Moyee (14 W.R., 151); Sokhee Monee Debia v. Brijoraj Mookerjee (17 W.R., 228); and Chowdhry Waheed Ali v. Mussamut Jumaye (19 W.R., 87)--the effect of which is that not merely the bare rental of each year, less the collection charges, is to be ascertained, but the actual loss which the party ousted has sustained by not having the use of his money during the period that he is kept out of possession.

2. The reply made to this objection is that the decree does not permit any interest upon mesne profits until after those mesne profits have been ascertained; and that this is simply an application to have mesne profits at compound interest. Looking at the decree, it appears that it only allows interest upon the consolidated sum arrived at by the Court as mesne profits after such mesne profits have been ascertained. There is no reason, however, why the lower Court, in assessing the mesne profits, should not have allowed interest upon each year's rent as compensation for the loss of the money. We think, therefore, that the contention of the decree-holder in this cross appeal is right, and that the principle laid down in Protap Chunder Borooah v. Ranee Surno Moyee (14 W.R., 151) and other decisions of this Court ought to have been followed. The judgment creditor, who has been kept out of possession, is entitled not merely to bare rental, but to compensation for the loss he has sustained. Under ordinary circumstances, therefore, if the decree-holder has been kept out of possession for several years, interest should be calculated at the end of each year upon the rental which he would be entitled to receive, and could receive from the ryots for that year. In the present instance, where the dispossession extends over eight years, interest should be charged for seven years on the aggregate of the rents received or realizable the first year, for six years on the rents received or realizable the second year, and so on; and thus the aggregate of these sums should constitute the mesne profits which it was the duty of the lower Court to ascertain and determine. Interest upon this consolidated sum would then run as provided for in the decree. It may be a question how far the definition of mesne profits as given in Section 211 of the new Civil Procedure Code is in accordance with the decisions of this Court above referred to. But we do not think it necessary to enter upon this point, as the present case undoubtedly falls under the provisions of the old Code.

3. The decree, therefore, of the Subordinate Judge will be amended in this respect, in that on the sum ascertained by the ameen as the assets, less collection charges, derived each year from the estate, interest at six per cent per annum will be allowed. Interest will be calculated upon each year's mesne profits up to the date of the decree of the lower Court, and interest upon the consolidated sum from that date to the date of realization.


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