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Debendra Nath Goswami and anr. Vs. Khirode Chandra Bandopadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.272
AppellantDebendra Nath Goswami and anr.
RespondentKhirode Chandra Bandopadhya
Cases ReferredPuran Chand v. Roy Radha Kishen
Excerpt:
execution proceedings - mesne profits, assessment of--continuation of original suit--death of decree-holder--substitution--limitation--civil procedure code (act xiv of 1882), section 365. - .....the decree-holder died in the month of september of that year. the application for assessment of mesne profits was made by the heirs of the deceased on the 26th june 1903, no previous application for substitution having been made. it is contended in support of the appeal that the application was barred because the proceedings for determining the amount of wasilut were not proceedings in execution of the decree but merely a continuation of the original suit and the decision of a full bench of this court in the case of puran chand v. roy radha kishen 19 c. 132 has been relied on in support of this contention. both the lower courts have held that the proceedings must be treated as proceedings in execution or proceedings similar to those taken under section 90 of the transfer of property.....
Judgment:

1. This is an appeal against an order passed by the lower appellate Court confirming with slight modifications an order pissed by the Court of first instance assessing mesne profits. It appears that, after the preliminary decree in the suit had been passed on the 3rd August 1906, the decree-holder died in the month of September of that year. The application for assessment of mesne profits was made by the heirs of the deceased on the 26th June 1903, no previous application for substitution having been made. It is contended in support of the appeal that the application was barred because the proceedings for determining the amount of wasilut were not proceedings in execution of the decree but merely a continuation of the original suit and the decision of a Full Bench of this Court in the case of Puran Chand v. Roy Radha Kishen 19 C. 132 has been relied on in support of this contention. Both the lower Courts have held that the proceedings must be treated as proceedings in execution or proceedings similar to those taken under Section 90 of the Transfer of Property Act and, therefore, that the provisions of section 365 of the old Code of Civil Procedure do not apply to them but that the provisions of Section 372 of the same Code apply. We find ourselves unable to accept the view taken by the lower Courts that the proceedings for assessment of mesne profits must be treated as proceedings in execution. We are also unable to hold that they can be treated as proceedings similar to those taken under Section 90 of the Transfer of Property Act. It is true that, for the purpose of appeal, proceedings for the ascertainment of mesne profits axe treated as miscelleneous proceedings and appeals are preferred not against the final decree passed on the basis of those proceedings but against the order assessing those profits and this would seem to support the view of the lower Courts that the proceedings must be treated as proceedings in execution supplementary to the original decree. We, however, find ourselves unable to interpret the decision of the Full Bench above referred to in any other way than as laying down that proceedings for the assessment of mesne profits must be treated as proceedings in continuation of the original suit. In that judgment, the Full Bench say: 'The proceedings, however, in determining the amount of wasilut are not proceedings in execution of a decree or in regard to any fixed sum but merely a continuation of the original suit carried on in the same way as if a single suit were brought for mesne profits by itself.'

2. Accepting the view laid down in that passage, we must hold that the proceedings must be regarded as a continuation of the original suit, and as such the provisions of the Code of Civil Procedure including Section 365 of the old Code must be taken as applicable to them. We, therefore, hold that, under the provisions of Sections 365 and 366 of the old Code of Civil Procedure, the application is barred by reason of the fact that no proceedings in order to substitute the representatives of the deceased decree-holder or to have the mesne-profits assessed were taken within six months from the date of the death of the original decree-holder. The result, therefore, is that the judgments and decrees of both the lower Courts are set aside and the appeal decreed with costs. We assess the hearing fee in this Court at two gold mohurs.


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