Decided on November 20,1962


Referred Judgements :-


Cited Judgements :-



- (1.)On 13th April 1932, one Chandanmal Jasraj filed suit No. 472 of 1932 for possession of an immoveable property and for past and future mesne profits. The suit resulted in a decree, which was passed on 9th September 1933. The defendant filed an appeal against that decree, but that appeal was dismissed on 27th November 1935, as having abated on account of the heirs of the plaintiff, who had died in the meantime, not having been brought on record. The defendant thereafter filed an application for review of the order dismissing the appeal but that application was also dismissed on 8th June 1936. In execution of the decree, Suratsing, the adopted son of the deceased plaintiff Chandanmal, recovered possession of the property on 13th March 1949. A few days thereafter, i. e. on 8th April 1949, he made an application to the trial Court for ascertainment of the inesne profits from 13th April 1932, i. e. the day on which the suit was filed till 13th March 1949, when possession of the property in question was recovered by him. It appears that in this application Suratsing had omitted to mention the fact that the defendant had filed an appeal against the decree in the suit. Suratsing accordingly filed an application on 18th January 1951 for amendment of the aforesaid application so as to incorporate the date of the dismissal of the appeal by the defendant. Somehow or the other, however, the amendment of the application, which was granted on 3rd February 1951, was not properly carried out. In other words, apart from other things, the date 13th April 1932, which had appeared in the application was scored out and instead the date 27th November 1935 was, substituted in its place. This amendment does not seem to have been noticed by Suratsingh for about two years. On nth February, 1953, after he came to know of the errors in the amendments made in the main application, Suratsing filed another application for amending the main application so as to indicate that the mesne profits that were prayed for were from 13th April, 1932, on which date the suit for possession was filed and for a period of three years subsequent to the final disposal of the appeal by the District Court; This application was granted by the Court. But it appears that no further amendment of the main application was carried out in pursuance of the order. On 24th July, 1953, the application for ascertainment of mesne profits was heard by the Court and by an order made on that day, the mesne profits were fixed for a period of three years at the rate of Rs. 25/- per month from 27th November, 1935, to 27th November, 1938. (It may be remembered that it was on 27th November, 1935, that the appeal, which was filed by the defendant against the decree, was dismissed by the Court). The order further directed that the decree in terms thereof shall be drawn up on Suratsingh paying the necessary Court fees in respect of the amount awarded to him as mesne profits. Being aggrieved by this order, it appears, Suratsing filed an application, Exhibit 63-A, on the game day praying that the order be reviewed and it may be corrected so as to allow mesne profits also from the date of the suit, i. e., 13th April, 1932. Sometime after this application was filed, Suratsing also filed an appeal against the order dated 24th July, 1953, being appeal No. 406 of 1953, in the District Court. This appeal was dismissed on 5th January, 1955, on the ground that since no executable decree was drawn up on account of the plaintiff hawing failed to pay the necessary Court fee for the amount of mesne profits, that was ascertained by the Court by its order dated 24th July, 1953, and the appeal was not from such decree, the appeal was not maintainable. The application, Exhibit 63-A, on the other hand was also dismissed on 22nd April, 1957. The reason for dismissing this application as given by the learned joint Civil Judge, Junior Division Ahmednagar, was that it was Suratsing himself, who had failed to carry out the amendment in the main application in pursuance of the order passed by the Court on his application dated nth February, 1953; and that, therefore, there was no error on the face of the record, which called for any correction in the order passed by the Court, under Section 152 of the Civil Procedure Code. On 27th April, 1957, Suratsing filed an application, Exhibit 94, praying that the decree in terms of the order passed on 24th July, 1953, be drawn up on the acceptance of the Court-fees from him, which he offered to pay. The Court-fees were allowed to be paid and the decree was formally drawn up on 9th May, 1957. Suratsing then filed Drakhast No. 3 of 1957 on 16th September, 1957, for execution of the decree. But that Darkhast was disposed of on 25th July, 1958. The present Darkhast was thereafter filed on 6th August, 1958; for the recovery of the amount of mesne profits awarded by the decree by attachment of the property belonging to the defendant. The defendant in this Darkhast contended that it was barred by time, since although, the formal decree was drawn up on 9th May 1957 in law it was deemed to have been passed on and bore the date the 24th July, 1953, when the amount of mesne profits was ascertained and the defendant was ordered to pay the same; and the Darkhast was filed more than, three years after the date of the decree. To save limitation for this application, Suratsing relied upon the appeal, which he had filed, being Appeal No. 406 of 1953 to the District Court against the order dated 24th July 1953, which had fixed the mesne profits at Rs. 775. He also relied upon Darkbast No. 3 of 1957, which was disposed of on the 25th July 1958. The Executing Court held that the application was not barred by time, since Suratsing was entitled to the deduction of time taken up by the aforesaid appeal and also by the said Darkhast. That Court accordingly ordered issue of a Jangam Warrant against the defendant. Against this order the defendant went in appeal to the District Court. The learned Assistant Judge, who heard this appeal, reversed the order of the Executing Court and held that the application for. execution filed on the 6th August 1958 was barred by time, since it was manifestly made more, than three years from 24th July 1953, on which date the decree for mesne profits though drawn up on 9th May 1957 was actually passed. The learned Judge did not allow to Suratsing the period of time taken up in the prosecution of appeal No. 406 of 1953 in the District Court since it was not an appeal against an executable decree. The learned Judge does not seem to have referred in his judgment to the prior Darkhast No. 3 of 1957, which was filedon the 16th September 1957, after the decree was drawn up on 9th May 1957. But that seems to be immaterial because, if the time taken up in the prosecution of the appeal as aforesaid could not he excluded from the period of limitation of three years from the 24th July 1953, the fact that Darkhast No. 3 of 1957 was filed on the 24th September 1957, which also was presented more than 4 years after the aforesaid date, could not make any difference. It is against this order allowing the defendant's appeal and dismissing the Darkhast that Second Appeal No. 887 of 1960 is filed by Suratsing in this Court.
(2.)Before this appeal, however, another appeal was filed by Suratsing in the District Court on 29th June 1957 against the order of the trial Court fixing the amount of mesne profits, dated 24th July 1953 and also against the order dated 22nd April 1957, dismissing his application, Exhibit 63A, for review of that order. As already stated, the application, Exhibit 63A, was dismissed by the trial Court on the ground that it was Suratsing's own mistake that he had not taken care to amend the main application praying for ascertainment of mesne profits, although his application for amendment thereof was granted by the Court On 11th February 1953. Before the learned Judge, who heard the appeal, it was conceded by the learned Advocate for Suratsing that no appeal could lie against the order dated 22nd April 1957, by which the application, Exhibit 63A, for review of the order dated 24th July 1953 was dismissed and accordingly, he did not question the validity of that order. The only question, therefore, that the learned Judge had to determine was as to whether, there, was any substance in the appeal against the order dated 24th July 1953, by which the amount of mesne profits was ascertained and awarded. To this appeal, however, the defendant raised a preliminary objection stating that the appeal was barred by time, since it was filed on the 29th June 1957, more than three years after the date of that order. This contention Was upheld by the learned Assistant Judge and the appeal was dismissed with costs. It is against this order of the learned Assistant Judge that Suratsing has filed Second Appeal No. 886 of 1960 in this Court.
(3.)Taking up the latter appeal first, it was urged by Mr. Joshi in support thereof that the appeal could not be said to have been barred by time on account of the fact that the truly effective decree was passed on 9th May 1957 and the appeal was filed on 29th June 1957, almost within two months from that date. Mr. Adik, the learned Advocate for the defendant, on the other hand, contended that Suratsing could not take advantage of his own default and claim exemption for the period between 24th July 1953, when the order fixing the amount of mesne profits was passed, and 9th May 1957, when the decree in terms of the order was drawn up, since it was he himself, who had delayed payment of the Court fees, on which alone a formal decree for the mesne profits was directed to be drawn up by the Court. It appears to me that Suratsing himself created a lot of confusion in this case. As already stated, he had filed an appeal (No. 406 of 1953) against the order dated 24th July 1953, in the District Court, and that appeal was already dismissed on 5th January 1955. In view of that proceeding, I wonder, how he could have filed another appeal against the same order. As already observed, the earlier appeal was dismissed inasmuch as it was found to be mis-conceived, because there was no executable decree at the date of filing of the appeal against which an appeal could be filed. Irrespective of whether that decision was right or wrong in Law, in my opinion, the appeal subsequently filed by Suratsing against the same order on 29th June 1957, must be held to be barred by res jndicata and really speaking, it was not necessary for the disposal of that appeal to decide as to whether it was barred by limitation or not.

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