Gajendragadkar, J. - (1.) This appeal by special leave raises a short question about the correctness of the view taken by the Division Bench of the High Court of Nagpur that the application made by the respondents to claim mesne profits from the appellants was valid in law. The learned single Judge of the said High Court who heard the matter in the first instance had rejected the application on the ground that it was incompetent in law. In the Letters Patent Appeal against the said judgment that conclusion has been reversed and the matter has been sent back to the executing Court for determinations of the mesne profits awardable to the respondents.
(2.) On August 22, l909 one Rustamrao sued Dinkarrao Rajurkar and others for partition of the joint family property (Civil Suit No. 26 of 1909). Dinkarrao Rajurkar who subsequently died is the husband of the first appellant and the father of appellants 2-.5. In execution of the decree passed in the said suit, a plot of land along with other property was allotted to the shale of Dinkarrao. When Dinkarrao sought to obtain possession of the said plot in execution, he was resisted by the respondents, but by an order passed on August 28, 1930, the respondents were directed to remove their obstruction and to deliver possession of the land to Dinkarrao. Accordingly on September 29, 1930. Dinkarrao was put in possession.
(3.) Then followed a suit filed by the respondents under O. 21, R. 103, C. P. C. (Civil Suit No. 113 of 1931). This suit was subsequently renumbered as 36-A/1937, and was ultimately decreed on April 29, 1940. In substance, the decree declared that the respondents were entitled to possession of the plot in suit together with the buildings thereon at the date of their dispossession by the order passed on August 28, 1930 and it directed Dinkarrao to deliver possession of the property to the respondents.;