(1.) THIS appeal under Order 43, rule 1 (u) of the Code of Civil Procedure, filed by the State of Madhya Pradesh, is directed against the order of the District Judge, East Nimar, Khandwa, dated 5th April, 1967, reversing the order and final decree of the Ilnd Civil Judge, Class II, Khandwa, dated 30th June 1966.
(2.) THE material facts are these. One Rao Sobhag Singh filed a suit for declaration that certain Otlas situate in the Abadi of Mouza Godagpura in Khandwa Tahsil belongs to him, for a perpetual injunction for restraining the State of Madhya Pradesh and Janapada Sabha, Khandwa, from interfering with his rights over the same, and for rendition of accounts of the profits accruing therefrom in the Kartiki fair of 1951 and the Shivratri fairs of 1952 and Misc. (First) Appeal No. 117 of 1967 decided on 4-4-1968, arising out of the order of 1953. Eventually, the suit was decreed by the Additional District Judge, Khandwa, and it was affirmed by this Court (Pandey J.) in State of Madhya Pradesh v. Rao Sobhagsingh(SA No. 379 of 1957, decided on 17-8-1962), subject to this variation that the Janapada Sabha was held not liable to render accounts of the profits earned. THEreafter, Rao Sobhagsingh applied under Order 20, rule 12 of the Code, for a final decree. This application was opposed by the State of Madhya Pradesh and Janapada Sabha on the ground that the Sabha had alone realised the profits, and, therefore, the State could not be asked to render accounts. THE Sabha, however, claimed that by virtue of this Court's decision (supra) it had been absolved of liability for rendition of accounts, and, therefore, no final decree for an account of profits, even though the profits were realised by it, could be passed. THEy, accordingly, prayed for dismissal of the application.
The Court of first instance upheld these contentions and dismissed the application. Rao Sobhagsingh then filed an appeal before the District Judge. The Court below has held that the State of Madhya Pradesh, having allowed the Janapada Sabha to realise the profits, was liable to render accounts. It held that the liability to render account of the profits realised arises in equity. 1 he State of Madhya Pradesh has, accordingly, been saddled with liability to render account of all profits which the Janapada Sabha might with ordinary diligence have received from the Kartiki fair of 1951, and the Shvratri fairs of 1952 and 53.
The appeal must be allowed for reasons I shall presently state. The expression "mesne profits" is defined in section 2 (12) of the Civil Procedure Code, as meaning as those profits which the person in wrongful possession of property. (a) actually received, or (b) might with ordinary diligence have received, therefrom. Now, in the plaint, there was a prayer for rendition of accounts of the profits, falling under category (a), i.e., of profits "actually received". The relevant portion of the plaint confining the claim, reads as under :-
"15. That the plaintiff tentatively values the claim for 'profits wrongfully received" by the defendants at Rs. 500 for November 1951, February 1952 and February 1953 as the plaintiff has no means "to ascertain the actual realisations made by defendant No. 2" during these periods and prays an enquiry be made for the same from 21-10-51to the date of the institution of the suit till the date of decree under Order 20 rule 12, clause (6) Civil Procedure Code."
The underlined portion clearly limits the claim for rendition of accounts of profits.
(3.) APART from this, the decree passed by the Additional District Judge is not silent as regards the nature of profits in respect of which account is to be rendered. The terms are not ambiguous but clear and explicit, they read:
"4. It is further ordered and decreed that the defendants do render an account of "the "the profits of these Otlas recovered by them" in the Kartik fair of 1951 and Shivratri fair of the years 1952 and 1953 and for that purpose the lower Court shall make an enquiry or appoint a Commissioner to fix the liability of amount."
Now, it is well-settled that where the preliminary decree contains a direction as to mesne profits, that would be binding on the parties at all subsequent stages, though it may be erroneous. [See, Mahant Narayanna v. Board of Trustees (AIR 1959 AP 64)
In view of the direction in the decree, the Court below was not right in widening the scope of enquiry under Order 20, rule 12, of the Code, in directing for rendition of accounts into profits which might with ordinary diligence had been received from the fairs during the relevant years. Now, if on a true interpretation of the terms of the decree, the rendition of accounts had to be limited to the profits "actually received", then on its terms, there can be no order passed under Order 20, rule 12 of the Code, against the State of Madhya Pradesh because admittedly the State had not appropriated to itself any part of the profits during the years in question.;