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Chunder Coomar Roy and ors. Vs. Gonesh Chunder Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal283
AppellantChunder Coomar Roy and ors.
RespondentGonesh Chunder Dass and ors.
Cases ReferredIn Fakharuddin Mahomed Ahsan v. The Official Trustee of Bengal I.L.R.
Excerpt:
possession, suit for - mesne profits--decree silent as to mesne profits--power of court executing decree--hindu law--daughters' sons--representatives--reversioners, liability of, for acts of widow. - .....appeal was dismissed. the appeal now before us relates to the execution of that decree as regards mesne profits and costs. the question has also been raised whether execution can be taken out against the receiver who has, in the meantime, been appointed to the estate of raj chunder by an order of this court in its original jurisdiction.2. the subordinate judge has refused to allow the decree-holders mesne profits on the ground that they were not expressly given by the decretal order. it is not clear whether mesne profits were asked for in the plaint. the appeal before us has been argued on the assumption that they were, but as, after full consideration of the law on the subject as contained in the reported decisions, we are of opinion that such mesne profits cannot be allowed we have.....
Judgment:

Wilson and Beverley, JJ.

1. This is an appeal arising out of the execution of a decree obtained by the appellants against Jugodumba and Pudmomoni, the daughters of Raj Chunder Dass and his widow Rash Money. It appears that, after forcelosure, Raj Chunder Dass instituted a suit for possession of certain mortgaged property. During the pendency of the suit he died, and his widow Eash Money was substituted as plaintiff and obtained a decree. In execution, she entered into possession of lands belonging to a third party, who thereupon brought a suit against her to recover those lands. She died while that suit was under trial, and a decree was obtained in this Court against her daughters Jugodumba and Pudmomoni, who, at her death, were the next heirs of Raj Chunder. A third daughter Sree Coomary, it may here be mentioned, predeceased Rash Money, and therefore did not succeed with her sisters. Jugodumba alone appealed to the Privy Council. Her appeal was dismissed. The appeal now before us relates to the execution of that decree as regards mesne profits and costs. The question has also been raised whether execution can be taken out against the Receiver who has, in the meantime, been appointed to the estate of Raj Chunder by an order of this Court in its Original Jurisdiction.

2. The Subordinate Judge has refused to allow the decree-holders mesne profits on the ground that they were not expressly given by the decretal order. It is not clear whether mesne profits were asked for in the plaint. The appeal before us has been argued on the assumption that they were, but as, after full consideration of the law on the subject as contained in the reported decisions, we are of opinion that such mesne profits cannot be allowed we have not thought it necessary to consider whether or not they were so claimed. The learned pleader for the decree-holders, appellants, relies on the authority of the case of Rajah Leelanund Singh v. Moharajah Luchmessur Singh 13 Moore's I.A. 490 : 14 W.R. P.C. 23 followed by the case of Gurudas Roy v. Stephens 13 B.L.R. Ap. 44 : 21 W.R. 195 in contending that although mesne profits were not expressly given by the decree, still inasmuch as they had been asked for in the plaint and were directly connected with the possession given to his clients, the lower Court was wrong in refusing to allow such mesne profits. These cases, however, are no direct authority for this contention. The case of Rajah Leelanund Singh merely decided that whereas in a former order of remand, their Lordships were unable to pass any final order in the case, but simply left it to the High Court to proceed in the suit as upon the result of the enquiry that they had ordered might seem just, it was competent to the High Court to allow mesne profits, and that they should, under the circumstances of the case, have been allowed. 'Had the first part of the order in Council stood alone,' their Lordships remark, 'it would have been one of the consequential directions proper to be given to ascertain the amount of mesne profits at the time that possession of the villages was given; and inasmuch as one part of the order, namely, that with regard to possession, has been executed by the High Court, everything connected with that possession should be executed at the same time.' The order passed by the High Court that they could not give mesne profits or anything beyond what the Privy Council in its decree had given was therefore set aside. The case of Gurudas Roy v. Stephens was one in which a party who, having obtained a decree which was set aside in appeal, had, notwithstanding, executed it, was directed to make restitution to the opposite party by putting him exactly in the same position in which he would have been if the decree had not been put in execution. It was held that it was unnecessary for the Appellate Court to pass any orders expressly on this point. So far, therefore, the cases relied upon by the appellant's pleader are not directly in his favour. On the other hand, the course of decisions is directly against him. It was held by a Full Bench of this Court in the case of Musoodun Loll v. Bhikaree Sing B.L.R. Sup. Vol. 602 : 6 W.R. Mis. 109 that in executing a decree, the Court that executes it has no power to alter or add to it, and that the only question in regard to mesne profits or interest which is left to be determined by the Court executing the decree is the question of amount. In Sadasiva Pillai v. Bamalinga Pillai L.R. 2 I.A. 219 : 15 B.L.R. 383 : 24 W.R. 193 their Lordships of the Privy Council held that it was the settled law in India that where a decree is silent touching interest or mesne profits subsequent to the institution of the suit, the Court executing the decree cannot assess or give execution for such interest or mesne profits. In Fakharuddin Mahomed Ahsan v. The Official Trustee of Bengal I.L.R. 8 Cal. 178 their Lordships state (see p. 190) that they ' do not reel at all pressed by the authority of several cases to which their attention has been called, the doctrine of which has been affirmed by this Board, namely, that where a decree is silent on the subject of interest or of wasilat, interest or wasilat cannot be added in the course of execution.' We are consequently of opinion that as the decree now under execution did not expressly give the appellants mesne profits, they are not entitled to realize them in execution of that decree, and that although they may have made mesne profits a portion of their claim together with recovery of the lands from which they had been unlawfully ejected, the Court executing the decree cannot properly assume that a decree for possession of those lands carries with it the right to obtain the mesne profits claimed in the plaint.

3. The appellants' pleader next contends that he is entitled to interest on costs in the lower Court, as such were expressly given by the terms of the decree of this Court. But we do not understand the order of the Subordinate Judge to refuse such interest except on the cost given by the Judicial Committee which are not ordered to bear interest. The appeal must therefore be dismissed.

4. It next becomes necessary to consider the objections raised by the earned Counsel for the respondents to the other portions of the order of the Subordinate Judge. Mr. Woodroffe contends that, inasmuch as the respondents are the sons of Jugodumba and Pudmomoni and the son's son of Sreecoomary (Judoonath, the son of Sreecoomary having died after succeeding to his inheritance and being now represented by his son) these persons cannot be regarded as legal representatives of the original judgment-debtors Jugodumba and Pudmomoni, because they have succeeded, not as heirs of those two ladles, but as heirs of their last male ancestor Raj Chunder. It is further contended that they are liable only to the extent of any property that they might have inherited from those two ladies. But these two ladies Jugodumba and Pudmomoni themselves succeeded by right of inheritance to their father Raj Chunder, and, for all purposes, represented that estate. We further observe that the respondents are still in possession of the lands which were wrongfully taken by Bash Money as included in the decree obtained by Raj Chunder for possession of the mortgaged property after foreclosure. They are not, therefore, in a position to disconnect themselves from the acts of Rash Money under which these lands were taken, and held as a portion of the family estate even at the present day. Under such circumstances, we think that the Subordinate Judge has rightly held that the respondents are the legal representatives of the judgment-debtors, and, as such, are liable to all costs incurred in the suit brought by the plaintiffs.

5. With reference to the objection that execution cannot proceed against the estate in the hands of the Receiver appointed by an order passed in the Original Side of this Court, we observe that the Receiver in the lower Court expressed his willingness to give up the estate. We think, therefore, that this objection cannot be sustained.


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