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Safaraddi and anr. Vs. Durga Prosad Sen and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.966
AppellantSafaraddi and anr.
RespondentDurga Prosad Sen and ors.
Cases ReferredPresident and Governors of Magdalen Hospital v. Knotts
Excerpt:
mesne profits - non-transferable occupancy-holding--transferee--execution sale of holding--purchase by landlord--sale set aside at instance of transferee who recovered possession--claim of mesne profits during dispossession, against landlord--whether maintainable--civil procedure code(act v of 1908), sections 144, 151. - .....who claimed that his interests were affected by the sale. he contends that he is entitled to these mesne profits by virtue of section 144 of the present code, or that he is entitled to invoke in aid of his claim the exercise of that vague jurisdiction which is called the inherent power of the court. even if it be assumed that the case falls within section 144, a point on, which i wish to reserve my opinion, i still think that the appellant cannot claim these mesne profits. had he brought a suit, he could not have obtained a decree for possession against the landlord who refused to recognise him as the transferee of a part of the holding or as his tenant; and, if that be so, he could not have recovered mesne profits against that landlord. but if that would have been the position had he.....
Judgment:

1. This is an appeal arising out of execution proceedings. The appellant complains that he has not been awarded mesne profits by the lower Courts, although at hid instance a sale of property has been set aside. In order to appreciate the real points in the case, it has to be borne in mind that the appellant claims to be the transferee of a part of a non-transferable occupancy-holding, while the auction-purchaser, whose sale has been set aside, is also the landlord decree holder. The suit in which the landlord obtained his decree was one for rent brought by him as landlord of the holding against the tenant, and the present appellant was no party to that suit. The sale was set aside under Sections 244 and 311 of the Code of 1882, at the instance of the appellant who claimed that his interests were affected by the sale. He contends that he is entitled to these mesne profits by virtue of Section 144 of the present Code, or that he is entitled to invoke in aid of his claim the exercise of that vague jurisdiction which is called the inherent power of the Court. Even if it be assumed that the case falls within Section 144, a point on, which I wish to reserve my opinion, I still think that the appellant cannot claim these mesne profits. Had he brought a suit, he could not have obtained a decree for possession against the landlord who refused to recognise him as the transferee of a part of the holding or as his tenant; and, if that be so, he could not have recovered mesne profits against that landlord. But if that would have been the position had he brought a suit, I fail to see how he can be in any better position by reason of Section 144 or the inherent power of the Court. I do not read that section, nor do I understand that power as conferring on any one new substantive rights; they merely provide a more convenient procedure.

2. It is unnecessary, in this view of the case, to consider whether a sale which is liable to be set aside is void or voidable, or, whether, if voidable, mesne profits can be recovered. See in this connection what was said by Lord Cairns in President and Governors of Magdalen Hospital v. Knotts (1879) 4 A.C. 324 at p. 334 : 48 L.J. Ch. 579 : 40 L.T. 466 : 27 W.R. 602. It is enough to say that on the ground I have indicated, the appellant cannot succeed and the appeal must, therefore, be dismissed with costs.


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