- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) PETITIONER filed O. S. No. 13 of 1970 against respondents for possession over a house and for mesne profit @ Rs. 500/- from the date of filing of suit, i. e. , 1-8-1970 till delivery of possession, i. e. pendente lite and future. The suit was decreed for both the reliefs claimed on 21- 3-1978 by Civil Judge, Senior Division, Bhadohi. Possession was delivered on 18-3-1997. Mesne profit from the date of filing of suit, i. e. , 1-8-1997, till date of possession, i. e. , 18-3-1997 (about 26. 5 years) come to Rs. 1,59,500/ -. The point involved in this writ petition is as to whether decree holder-petitioner is entitled to interest over the amount of mesne profits or not. Decree holder-petitioner filed Execution Case No. 02 of 1979 for execution of decree dated 21-3-1978 passed in O. S. No. 13 of 1970. Realization of the decreed amount for mesne profit was sought through auction and sale of house No. 08/03. In the execution, the Executing Court/civil Judge, Senior Division, Bhadohi, passed an order on 19-2-1999. Through the said order, claim of the decree holder-petitioner for interest on mesne profit was rejected. However, for recovery of the mesne profits (or balance thereof), petitioner was directed to take steps for auction of House No. 08/03 under Order XXI, Rule 66, C. P. C. Against the said order, petitioner filed Civil Revision No. 17 of 1999. The A. D. J. , Court No. 1, Bhadohi, Gyanpur dismissed the revision on 31-8-2002, hence this writ petition.
(3.) THE revision was confined only against that portion of the order of the Executing Court, through which prayer for grant of interest had been refused. Both the Courts below held that in the decree, there was no direction for payment of interest on mesne profits, hence interest could not be awarded. THE operative portion of the decree dated 21-3-1978 is quoted below : "suit is decreed with cost. Plaintiff is entitled to the possession of the house in suit after ejectment of the defendants and he is entitled also to the mesne profit at the rate of Rs. 500/- per month from 1-8- 1970. Plaintiff will be entitled to the mesne profit after payment of Court fee in the execution side. Defendant is directed to vacate the house in suit within 2 months from the date of the order. In case of default plaintiff will be entitled to get possession through the Court on the cost of the defendant. " In my opinion, there is absolutely nothing wrong in the impugned orders. Learned Counsel for the petitioner has cited a Constitution Bench Authority of the Supreme Court reported in AIR 2001 SC 626, "executive Engineer, D. M. I. Divn. , Orissa v. N. C. Budharaj". In the said authority, it has been held that arbitrator is entitled to award pendente lite and future interest as well as for pre-reference period.;