SHAMBHU DAYAL KHETAN Vs. MOTILAL MURARKA
LAWS(PAT)-1979-8-3
HIGH COURT OF PATNA
Decided on August 16,1979

SHAMBHU DAYAL KHETAN Appellant
VERSUS
MOTILAL MURARKA Respondents


Cited Judgements :-

ISMAIL KHAN VS. HAZZAN SHAKURAN [LAWS(RAJ)-2012-7-34] [REFERRED TO]


JUDGEMENT

- (1.)This civil revision application is directed against an order dated 3rd June, 1977, by which the court below dismissed the application filed by the petitioners for ascertainment of mesne profits against the defendant-first party to the mortgage suit and one Arbind Nath Mishra, who is opposite party No. 6 to this application.
(2.)The application for mesne profits filed in the court below on 2-1-1973 was an outcome of a litigation initiated on 18-8-1953. Events are many but they all need not be mentioned for the disposal of this application as they are irrelevant for our purpose. All that need be said is that Title Mortgage Suit No. 65 of 1953 was filed by the United Bank of India Ltd. against opposite party Nos. 1 to 3. A receiver was appointed in the year 1957, who took possession of the suit property. The petitioners claiming to be the purchasers of 4 annas 8 pies share claimed to be in possession of 17 rooms in the suit property known as Moti Mahal. Possession of all these rooms was taken by the receiver. Later on, by an order dated 10-10-1969, the court, directed the receiver to hand-over possession of six rooms to the petitioners. This was not to the liking of opposite party Nos. 1 to 3 and 6. All possible objections were raised and the delivery of possession with respect to these six rooms was delayed till 13-1-1974, that is to say, the petitioner could take possession of those six rooms after about more than four years of the order dated 10-10-1969. Through this application, therefore, the petitioners claimed that they should be paid mesne profits at the rate of Rs. 300/- per month because of the loss they suffered on account of non-delivery of possession for the period above-mentioned.
(3.)The application was contested by the opposite party. The court below rejected the application on the ground that the petitioners were not parties to the mortgage suit and as such neither Section 144 of the Code of Civil Procedure nor Section 151 of the Code of Civil Procedure applied to the facts of this case. The court below also seems to have held the application to be not maintainable because opposite party No. 6 was in possession of four out of the 6 rooms and he too was not a party to the suit. Thereafter, this revision application has been filed.


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