SARAT CHANDRA RAKSHIT Vs. SUBASHINI DEBI

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holder, against the order of the Subordinate Judge declaring that ho is liable for mesne profits for a certain period commencing from 22nd January 1923, to the date of the application which was 25 March 1926. The question arises in this way : The decree-holder obtained a decree for arrears of rent with regard to the property in question in the year 1920. The decree was put into execution for the whole amount which was something like nine thousand rupees and the tenure was purchased by the decree-holder at the execution sale on 7 November 1921. The judgment-debtors applied for setting aside the sale and that application was dismissed on 27 May 1922, by the trial Court. The sale was subsequently confirmed and symbolical possession is alleged to have been taken by the decree-holder on 22 January, 1923. From the order of the trial Court dismissing the application for setting aside the sale an appeal was taken to this Court by the judgment- debtors and that appeal was settled by compromise-between the parties. The terms of the compromise were that the sale should beset aside on condition that the judgment-debtors deposit in Court the sum of two thousand rupees in April 1925 and the balance of the decretal amount be paid by them in four equal monthly instalments on the first day of every ensuing, month, and in default of the first payment being made on 14 April 1925, or of any of the four equal ensuing, monthly instalments, the sale was to stand. On payment of the first instalment possession was to be given to the judgment-debtors and the judgment-debtors were prevented from making any permanent settlement without the-consent of the decree- holder. In March 1926, the judgment-debtors made an application purporting to have been made under Secs.144 and 151, Civil P.C., asking for restitution with the mesne profits, which they said they were entitled to get from the decree-holder for his not having delivered possession to the judgment-debtors. The decree-holder took his stand upon the fact that the judgment-debtors were not entitled to any mesne profits, and he further alleged that he had never been in actual possession of the land in question. The Subordinate Judge has held that the decree-holder is liable for mesne profits by way of restitution consequent to the setting aside of the sale under the provisions of Section 144 of the Code. The judgment-debtors claimed about seventy-five-thousand rupees per year by way of mesne profits. On the face of it, it seems-to be an extraordinarily inflated claim having regard to the fact that the rent reserved for the tenure is only 1,800 rupees which these judgment-debtors had not been able to pay, and for which default the decree was obtained by the decree-holder. From the decision of the Subordinate Judge, the decree-holder has preferred this appeal.

(2.) It is contended on behalf of the judgment-debtors respondents that the appeal is incompetent. If it is an order under Section 144 of the Code, it is a decree and from that order there would be an appeal. But it is contended by the respondents that it is not a final order as the amount of the mesne profits due has not been assessed and, therefore, there would be no appeal. The appellant, however, contends that when the order has been made the decree- holder is liable for mesne profits that is a decree, although the sum has not been worked out, and the only tiling that remains to be done is to work out the amount. In my judgment, there is an appeal from the order made by the Subordinate Judge, because it determines the rights of the parties finally with regard to the matter in question and it falls within the definition of a decree under Section 2 of the Code. It may further be stated that according to the principles enunciated by the Privy Council in the cases of Rahimbhoy Habibhoy V/s. Turner [1890] 15 Bom. 155 and Saiyid Muzhar Hussein V/s. Rodha Bibi [1894] 17 All. 112 this is a final order from which an appeal is maintainable. The preliminary objection, therefore, fails.

(3.) The next question is whether the judgment-debtors are entitled to mesne profits by way of restitution. The first question is with regard to the nature of the consent order. If, upon the payment of the first installment the decree-holder had not delivered possession to the judgment-debtors, there is no question that the judgment-debtors would be entitled to possession by execution. The important question is, and that is the only question which has been argued on behalf of the appellant, as to whether the decree-holder would be liable for mesne profits between the date of 22 January, 1923 to 14 April 1925, when the first payment of the instalments was made by the judgment-debtors. It is contended on behalf of the respondents judgment-debtors that they come within the spirit of the provisions of Section 144 of the Code, where it is stated that when a decree is varied or reversed the party entitled to any benefit by way of restitution or otherwise should get restitution from the first Court. Section 144 does not apply in terms to this case, because it is not a reversal of the decree on which restitution is claimed. But it is said that the judgment-debtors are entitled to recover mesne profits under Section 151 of the Code, and reliance has been placed in support of this contention on the case of Beni Madho Singh V/s. Pran Singh [1911] 15 C.L.J. 187. There it was laid down following a series of cases, that the Court has inherent power to give relief to a party who has suffered any loss on account of the Court's erroneous order. That proposition certainly is not applicable to the present case. Hero the order confirming the sale was set aside by an agreement between the parties and nothing can be said against the Court confirming the sale that the order was made erroneously and therefore the Court should exercise its inherent power to place the parties in the position in which they were before the erroneous order was made. A consent order was made upon certain conditions and it was agreed between the parties that only upon the payment of the first instalment, possession was to be delivered to the judgment-debtors. If it was the intention of the parties that up to that date the decree-holder would be liable for mesne profits for having been in possession of the property, the parties, would have distinctly sot that forth in that agreement on which the order was made. If it was the intention of the judgment-debtors that they would hold the decree- holder liable for mesne profits up to the payment of the first instalment, the decree-holder might very well have said: I am willing to deliver possession this very day if you pay me the money immediately.