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1997 DIGILAW 399 (HP)

MAST RAM v. NIKA RAM

1997-11-11

P.K.PALLI

body1997
JUDGMENT P.K.Palli, J. (Oral) :- This Revision Petition is directed against order passed by the Execution Court dated 27th of October, 1994, where by objections, filed by the Judgment debtors, were dismissed and in respect-of mesne profits it was held that the Decree-holder cannot be held entitled to mesne profit since it does not form part of the judgment and decree. 2. The admitted position is that a suit for possession by way of redemption was filed by the- plaintiff which was decreed and appeal against judgment and decree was ordered to be dismissed by the first appellate Court. The second appeal filed before this Court numbered as RSA No.44 of 19 was ultimately dismissed vide judgment dated 19th March, 1991. The defendant who was the appellant in second appeal before this Court had moved application for stay of dispossession and stay was granted. 3. Application for vacation of stay order was moved by the plaintiff which a detailed order was passed by this Court on 30th November. 1982. that order the application was disposed of with the observations that the learned counsel for the parties appearing in that case had agreed mat the annual income of the property be fixed at Rs. 750/- per annum and in the circumstances it was ordered that the execution of the decree is stayed till disposal of the appeal subject to the appellants that is the defendants furnishing a security for the due performance of the decree which may ultimately be binding upon the parties security for mesne profits to the satisfaction of the Subordinate Judge. It is not denied that the defendant stood surety for himself and surety bond was given, attested and accepted on 20th of August, 1983. 4. After the appeal was finally disposed of by this Court, the stage was now set for the plaintiff to file execution petition for the recovery of possession and a further prayer was made that the mesne profits as directed by this Court be also awarded to him. Objections were filed by the defendants-judgment debtors, which have been disposed of vide impugned order. The Executing Court has taken notice of the order passed by this Court but has refused to grant mesne profits on the ground that the grant of mesne profits does not form of the decree. It is not disputed that possession of the property stands delivered to the Decree-holder. The Executing Court has taken notice of the order passed by this Court but has refused to grant mesne profits on the ground that the grant of mesne profits does not form of the decree. It is not disputed that possession of the property stands delivered to the Decree-holder. The Execution was filed on May 7, 1991 that ii almost after two months from the passing of the final decree by this Court. 5. Mr. Gupta, learned counsel appearing for the petitioner-Decree holder, contends that once the order has been passed by this Court ordering the security of mesne profits, the order shall be treated as a decree and could be executed for the realization of the amount which was found due to the Decree-holder. Reliance has been placed by the learned counsel on Section 145 of the Code of Civil Procedure, wherein provisions have been made for the enforcement of the liability of the surety. Under Sub-Clause (C), it is said that where any person has furnished security or given guarantee for payment of any money under an order of the Court in any suit or in any proceeding consequent thereon (emphasis supplied), the decree or order maybe executed in the manner hereunder provided for the execution of the decrees. Under clause-(ii) of Sub Section (C) it is said that in case any security is furnished, by sale of such property to the extent of security. 6. A plain reading of the provisions, thus, makes it amply clean that not only the decree may be executing accordance with law, but any order passed the court either in a suit or in any proceeding consequent thereon, may be executed in the manner provided for the execution of the decree. 7. Learned counsel appearing for the defendants-Judgment debtor states that the order passed by this court was limited to the stay application only in the final decree passed by this Court, there was no order or direction in respect of the payment of mesne profits and therefore, the Execution Court has lightly rejected the prayer of the Decree-holder. 8. I am not impressed with the arguments as the second appeal, which was being heard by this Court, was, in a way, the hearing of the suit itself and an order was passed on the agreed position as adopted by the learned counsel for the parties in that appeal. 8. I am not impressed with the arguments as the second appeal, which was being heard by this Court, was, in a way, the hearing of the suit itself and an order was passed on the agreed position as adopted by the learned counsel for the parties in that appeal. The Decree-holder cannot be driven to file a separate suit for the recover) of the amount and it is perhaps for these reasons that the provisions have been made under Section 145 of the Code of Civil Procedure. 9. The matter can be looked from another angle also. The words in clause (C) "under an order of the Court in any suit or in any proceeding consequent thereon" would also mean that the proceedings which are referred to are to be in consequence of the suit. As observed above, it has already been said that the second appeal before this Court was the hearing of the suit. The order passed in appeal would, thus, also be taken as an order passed by the Court in the suit itself. The language of the provisions does not stop there and further goes on to say "or in any proceeding consequent thereon". The order of mesne profits can safely be termed as an order which has been passed in proceedings consequent thereon. 10. Looking from any angle the Decree holder can not be left high and dry although there is an order in his favour passed by this Court in respect of mesne profits. 11. Mr. Kuthiala has stated that the Decree holder has wrongly claimed amount of Rs. 19,000/-. As observed in the impugned order. I agree with the reasoning given by the learned counsel. It is not understood as to from where the Executing Court has rounded up this figure of Rs. 19.000/-, whereas infect, the mesne profits were ordered at the rate of Rs.750/- per annum and die order to this effect was passed on 30th November, 1982. The Execution Petition was filed in the year 1991, so at best the Decree holder could claim mesne profits for ten years, which figure would come to Rs. 7,500/- only. It may also be made clear that there is not finding or any other observation in respect of the payment of interest on the amount of mesne profits and the Decree holder, in my view, is not entitled to any interest. 7,500/- only. It may also be made clear that there is not finding or any other observation in respect of the payment of interest on the amount of mesne profits and the Decree holder, in my view, is not entitled to any interest. The possession of the suit land already stands delivered to the Decree holder. The present dispute, thus, pertains to the realization of the amount covered by the mesne profits, as ordered by this Court and for that purpose the Executing Court shall have to determine the amount in sequence of the order and directions given by this Court in its order dated 30th November. 1982. The defend ants-Judgment debtors would be at liberty to file whatever objections are available to them under the law and the Executing Court shall now proceed to dispose of the Execution Petition in the light of the observations made above. 12. In view of what has been said above, the impugned order is set aside. The Revision Petition is allowed, in the aforesaid terms. Parties through their learned counsel are directed to appear before the Executing Court on 4.12.1997. The Executing Court is further directed to dispose of the Execution within six months from today. 13. Parties to bear their own costs.