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Phani Bhusan Dhar Vs. Anukul Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal590
AppellantPhani Bhusan Dhar
RespondentAnukul Mukherjee and ors.
Excerpt:
- .....deprived in execution of a decree which had been reversed. thereupon phani bhusan appealed to the learned district judge. the learned district judge has very rightly decided that phani bhusan is entitled to recover possession as against all the respondents including respondents 2 and 3 who claimed to have been put into possession by respondent 1 under a lease. having made that order the learned judge ought to have further added that the appellant would be entitled to a refund of any costs that he had to pay in execution of the decree or damages and mesne profits which were properly consequential on the variation or reversal of the decree. it seems to have been an unintentional omission in the judgment of the learned district judge, only respondents 2 and 3 appear and they say that they.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by an applicant. The application was made under Section 144, Civil P.C.A suit was brought by respondent 1 against the appellant for ejectment. The suit was decreed and the appellant was dispossessed in execution of that decree on 6th September 1926. That decree was reversed finally on 26th March 1927. In the meantime, respondent 1 granted a lease of the property to respondents 2 and 3. The appellant made the application against all the respondents. The learned Munsiff allowed the petition as against respondent 1 and he directed that the petitioner would get possession as against him, but he dismissed the petition against respondents 2 and 3. The result of it might have been that the appellant Phani Bhusan would not get possession of the property of which he was deprived in execution of a decree which had been reversed. Thereupon Phani Bhusan appealed to the learned District Judge. The learned District Judge has very rightly decided that Phani Bhusan is entitled to recover possession as against all the respondents including respondents 2 and 3 who claimed to have been put into possession by respondent 1 under a lease. Having made that order the learned Judge ought to have further added that the appellant would be entitled to a refund of any costs that he had to pay in execution of the decree or damages and mesne profits which were properly consequential on the variation or reversal of the decree. It seems to have been an unintentional omission in the judgment of the learned District Judge, Only respondents 2 and 3 appear and they say that they should not be made liable for any mesne profits as they did not dispossess the applicant, nor were they in wrongful possession. In my opinion, that position taken by respondents 2 and 3 is quite sound. It was respondent 1 who was responsible for depriving the applicant of his possession of the property.

2. We therefore direct that in addition to the order made by the learned District Judge that the petitioner should be put into possession of the house or a portion thereof in question, he would also be entitled to a refund of any costs that he might have paid to respondent 1 with interest and mesne profits for the period he was kept out of possession of the property from respondent 1. The petitioner is entitled to his costs of this appeal as against respondent 1. Respondents 2 and 3 will bear their own costs of this appeal. The hearing fee is assessed at three gold mohurs.

Basu, J.

3. I agree.


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