Muni Lal Verma, J. - (1.) THE circumstances giving rise to this appeal, may be, briefly, stated as under: TEJA Singh and his two brothers Basant Singh and Jagir Singh, obtained a decree for possession of land measuring 70 Kanals 3 Marias against Gurdeep Singh on July 19, 199(sic) from the Court of Subordinate Judge, First Class, Ropar. Aggrieved by the said decree, Gurdeep Singh preferred appeal on November 25, 19(sic) which was heard by the learned Additional District Judge, Ropar. On an application moved by Gurdeep Singh, the learned Additional District Judge passed order on February 20, 1970 therein after referred to as the stay order) to the effect that dispossession of Gurdeep Singh from the lard would be stayed during the pendency of the appeal on furnishing security in personal bond with two sureties for payment of mesne profits in the sum of Rs. 10,000/ - per year each to Teja Singh in the event of dismissal of the appeal. In pursuance of that order, Hazura Singh and Naurang Singh furnished surety bonds for payment of mesne profits extending to Rs. 10,000/ - per year each, to Teja Singh and his brothers in the event of dismissal of the appeal. These surety bonds were executed by them on March 2, 1970. The appeal preferred by Gurdeep Singh was ultimately dismissed on October 9, 1972. Teja Singh and his two brothers took out execution of the decree on October 18, 1972, and they succeeded in obtaining possession of the land on October 20, 1972 They moved an application under Section 145 read with Section 47, Code of Civil Procedure, on November 22, 1972 for recovery of mesne profits for nine years, i.e , from Rabi 1964 to Kharif 1972 at the rate of Rs. 10,000/ - per year, i e. Rs. 90,000/ - in all, from Gurdeep Singh and his two sureties, Hazura Singh and Naurang Singh, in the executing court. All of them, viz., Gurdeep Singh, Hazura Singh and Naurang Singh contested the said application. The factum that Hazura Singh and Naurang Singh stood sureties for payment of mesne profits to the extent of Rs. 10,000/ - per year each pending the appeal in the event of dismissal of the appeal, was admitted. The other material allegations were cont obverted and it was pleaded inter alia that the application moved by Teja Singh and others for recovery of mesne profits was not maintainable and was barred by time. Hence the said application was tried on the following issues: (1) Whether the application for mesne profits is not maintainable ? O. P. Objector (D.O.) (2) Whether the whole claim of mesne profits is not within limitation ? O.P. (JD) (3) To what amount the decree holder is entitled to mesne profits ? OPDH. (4) Relief.
(2.) THE executing Court decided issues No. 1 and 2 against Gurdeep Singh, Hazu a Singh and Naurang Singh, and held under issue No. 3 that Teja Singh and his two brothers were entitled to recover mesne profits at the rate of Rs. 10,000/ - per year with effect from July 9,(sic) 1969 when the decree for possession was recorded by trial Court upto October 20, 1972 When possession of the land had been taken by Teja Singh and his brothers and order to that effect was passed in their favour. Aggrieved by the said order, aurang Singh came to this Court in appeal.
(3.) ASSAILING the impugned order, Mr. P. S. Mann the Learned Counsel for the Appellant. has raised the following contentions: (a) that the application moved by Teja Singh and his brothers under Section 145 read with Section 47, Code of Civil Procedure, for recovery of mesne profits was not maintainable, and the remedy available to them was by civil suit, and (b) that mesne profits could not be allowed to Teja Singh and his brothers at the rate of Rs. 10,00/ - per year, much less for the period beginning from the date of decree of the trial Court, and in no case up to the date of delivery of possession of the land. According to Sub -rule (3) of Rule 5 of Order XLI, Code of Civil Procedure, security can be demanded by the Appellate Court for due performance of the decree that may eventually be passed against the Appellant. Security for any relief which is not subject of the suit wherein the impugned decree has been recorded cannot, in my opinion, be demanded under the said rule. In the suit, Teja Singh and his brothers did not claim mesne profits. Therefore, the first Appellate Court could not demand security for payment of mesne profits and the same could not be given under order XLI. Rule 5, Sub -rule (3). Code of Civil Procedure. But the first Appellate Court, in my opinion, had inherent jurisdiction under Section 151 of the Code of Civil Procedure, to demand security for payment of mesne profits from Gurdeep Singh when Ye bad applied for stay of his dispossession in execution of the decree. Hence, the stay order demanding security for mesne profits from Gurdeep Singh should be taken and deemed to have been passed under inherent powers, under Section 151 of the Code of Civil Procedure. When the said order was passed under Section 151, Code of Civil Procedure, and the security bond was executed by the Appellant in pursuance thereof it (the security bond) could, in my opinion, be executed summarily in execution proceedings without having recourse to a first suit. Similar view was taken in Ouseph Korathu v. Gopalan Nair, AIR 1952 TC 237. No authority contrary to the proposition laid down in that judgment has been cited by Mr. Mann. In that view of the matter the application made by Teja Singh and his brothers for realisation of mesne profits from the Appellant and Others was maintainable in the executing Court apart from the provisions of Section 145, Code of Civil Procedure. Even, otherwise, the contention of Mr. Mann that the case in hard is not covered by Section 145, Code of Civil Procedure, and the remedy of Teja Singh and his brothers was by way of suit only is not, in my opinion, sustainable. It is noteworthy that Section 145, Code of Civil Procedure, dispenses with the necessity of suit and enables the party for whose benefit the security has been given to enforce the security by executing proceedings in the same manner as if the surety was a party to the decree or order in respect of which security has been given. The relevant portion of the provisions contained in Clause (c) of Section 145, Code of Civil Procedure, is to the effect that: Where any person has become I able as surety for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him to the extent to which he rendered himself personally liable in the manner herein provided for execution of decrees. ;