JUDGMENT : Ashim Kumar Banerjee, J. In 1979 the Superintendence Company of India Limited filed a suit being suit No. 343 of 1979 as against Western Building Corporation inter-alia claiming, the defendant being the developer of the Everest building failed to adhere to the agreement for sale as also complete the construction and maintain the building. Simultaneously on filing of the suit the Superintendence filed an application for interim protection. One Mohit Mahalanobis a retired Army Officer was appointed as Administrator of the Everest building at premises No. 44C Jaharlal Nehuru Road Calcutta vide order dated August 25, 1980. From time to time this Court passed diverse orders extending the scope of work by the Administrator. Administrator initially started his office on the corridor as claimed by him. Subsequently getting a vacant and unfinished flat without any proper title Mohit took possession of flat No. 21B and started his office after doing the finishing work that was left. It was also alleged; he let out a portion of it. It was however, not clear what he would do with the issues and profits that he could make out of such letting out. It further transpired, the said flat was an unauthorized one having no sanction from the Municipal Corporation. 2. In or about 1995 one Suprabha Basu, Himadri Narayan Basu and Soumendra Narayan Basu filed a suit against Mohit by making Western Building Corporation and Manikrai Sujani Bharat as proforma defendant. The plaintiffs claimed, they were the heirs of one Jatindra Narayan Basu. Jatindra was carrying on business under the name and style of M/s Basu Mitra and Company as a building contractor. They would claim, flat No. 21B was the property of Jatindra that they inherited after his death. Hence, Mohit had no business to forcibly take possession. The plaintiffs claimed recovery of possession and mesne profit. The paragraphs that would be relevant for our consideration being paragraph 27, 36, 41 and the prayers being prayer (a), (b), (c) and (d) that are quoted below: 27. The plaintiffs state that the defendant No.1 being the Administrator appointed by this Hon'ble Court acted totally beyond the jurisdiction and power vested in him by this Hon'ble Court by his order of appointment dated 25th August, 1980. 36. The plaintiffs state that the defendant No.1 being the Administrator appointed by this Hon'ble Court acted totally beyond the jurisdiction and power vested in him by this Hon'ble Court by his order of appointment dated 25th August, 1980. 36. Under the circumstances the plaintiff No.2 contacted such of the other flat owners in the said premises who informed the plaintiff No.2 that the defendant No.1 has alleged before this Hon'ble Court in an affidavit affirmed by him that the said flat was sold to the said contractors being the contractors who constructed the said premises against their outstanding bills and upon enquiry the contractors failed to produce the relevant necessary agreement for sale or any other evidence in respect thereof and in view of the matter the defendant No.1 kept the said flat and established his office in the said flat. The plaintiff No.2, however, could not ascertain the particulars of the said affidavit so affirmed by the defendant No.1. 41. The plaintiffs state that inspite of the efforts, the plaintiffs could not ascertain the actual date on which the defendant No.1 took possession of the said flat. In any event, the plaintiffs state that from the correspondence exchanged between the plaintiffs and the defendant No.1, it would be evident that the defendant No.1 took wrongful and illegal possession of the said flat sometimes after 14th May, 1983. Without prejudice to the aforesaid and on the contrary strongly relying thereon, the plaintiffs further state that the defendant No.1 entered into possession of the said flat as the Administrator appointed over the said premises. Under the circumstances, the possession of said flat by the defendant No.1 is possession of the same by this Hon'ble Court for the benefit of the real owners of the said flat in the still further alternative, the plaintiffs state that the defendant No.1 being the Administrator appointed by this Hon'ble Court has taken possession of the said flat as the trustee for the benefit and for protection of the interest of the owners of the said flat. (a) Decree directing defendant No. 1 to deliver back peaceful and vacant possession of the said flat described in Annexure A' hereto to the plaintiff; (b) Decree directing the defendant No. 1 to submit a true and faithful account of the incomes earned by the defendant No. 1 by utilising the said flat and/or portion thereof and a decree in favour of the plaintiffs and against the defendant No. 1 for the amount which would be found to have been earned by the defendant no. 1 by utilising the said flat and/or portion thereof. (c) In the alternative, enquiry be held to ascertain the amounts earned by the defendant no. 1 by utilising the said flat and/or portion thereof and a decree be passed against the defendant No. 1 and in favour of the plaintiffs for the amounts which may be found due and payable by the defendant No. 1 to the plaintiffs on such enquiry; (d) Perpetual injunction restraining the defendant No. 1, his servants, agents and assigns from in any way dealing with and/or transferring and/or alternating and/or encumbering and/or creating any third party interest over and/or in respect of the said flat No. 46C, Jawaharlal Nehru Road, Calcutta;" 3. Mohit contested the suit however, we do not get the Written Statement for our perusal. We however, find at page-195-222 of the paper book, Mohit filed a Notes on Argument before the Special Referee wherein he would indicate his stand, particularly at page 201-205, he would assert, he did not have any personal liability. We find, neither the plaintiff made any definite assertion as against Mohit in his personal capacity nor Mohit ever claimed so. We would be discussing in detail on this aspect little later. 4. As observed hereinbefore, the learned Single Judge disposed of the suit by judgment and decree dated June 15, 2009. His Lordship passed a decree for recovery of possession as well as mesne profit. We are told, the plaintiff recovered possession hence we need not dilate on such issue. This appeal would center around a controversy as to the mesne profit and its payability. The learned Judge in internal page 25 of the decision observed, it was evident, Mohit was in possession of the suit property from August 15, 1980 that Mohit never disputed. Mohit took physical possession in 1981 after making necessary repair. This appeal would center around a controversy as to the mesne profit and its payability. The learned Judge in internal page 25 of the decision observed, it was evident, Mohit was in possession of the suit property from August 15, 1980 that Mohit never disputed. Mohit took physical possession in 1981 after making necessary repair. The learned Judge also recorded, when he took possession, the front portion of the flat was incomplete that Mohit completed. Mohit also admitted, after becoming the Administrator his wife Shanta acquired a flat in the building being flat No. 2D. We understand, the flat was subsequently sold by Mohit during his life time. The learned Judge ultimately came to finding, Mohit wrongfully entered into possession in 1985. Mohit admitted, initially he was running office from the corridor on the 14th floor thereafter for three years in flat No. 20 F. Subsequently, he started functioning from flat No.20 B since 1985 by dispossessing the plaintiff. On the strength of such finding His Lordship allowed the suit on contest and passed a decree of recovery of possession. His Lordship also observed, "There shall be a preliminary decree for past and future mesne profits. The final decree will be passed in accordance with result of the inquiry according to the provisions of Order 20, Rule 12 of the Code of Civil Procedure 1908". 5. The plaintiffs subsequently obtained possession from Mohit and proceeded for ascertainment of mesne profit. Mr. S.P. Sarkar learned senior advocate of this Court acted as the Special Referee. Mr. Sarkar submitted a report appearing in page 435-459 of the paper book. Paragraph 50 of the report being relevant herein is quoted below: "The defendant is not liable for mesne profit in his personal capacity. Hence, the liability must be met from the fund of the administrator subject to any claim for set off on account of maintenance charges due from the plaintiffs which on the last count stood at Rs. 13, 33, 881.6op." 6. From the paragraph quoted supra we find, the Special Referee held, Mohit was not personally liable. During the pendency of the litigation, Mohit died leaving him surviving his widow Shanta Mahalanobis. The parties challenged the report of the Special Referee. Ultimately the issue came up before us for consideration. We heard the appeal on the aforesaid above mentioned dates. 7. From the paragraph quoted supra we find, the Special Referee held, Mohit was not personally liable. During the pendency of the litigation, Mohit died leaving him surviving his widow Shanta Mahalanobis. The parties challenged the report of the Special Referee. Ultimately the issue came up before us for consideration. We heard the appeal on the aforesaid above mentioned dates. 7. In course of hearing of the appeal we thought, presence of the Owners' Association who subsequently replaced the Administrator, would be necessary hence, we asked notice to be served. Accordingly notice was served and the Owners' Association appeared before us and made submission. 8. The issue came up before the learned Single Judge in execution when the decree holder challenged the report of the Special Referee. Learned Judge set aside the report and appointed another Referee to do the exercise de novo hence, the appeal at the instance of the decree holder. Contentions: 9. Mr. Dhruba Ghosh learned Counsel appearing for the appellant decree holder would contend, there was no dispute as regard the rate at which the mesne profit was claimed however, the decree holder was aggrieved as the Special Referee reduced the area of the flat in question from 6,000 square feet to 2,000 square feet. On the question of payability Mr. Ghosh would contend, he would not be bothered who discharged the liability however, he would support the Owners' Association to the extent, once the learned judge found Mohit in wrongful possession such wrongful possession could not absolve him from his personal responsibility and the Owners' Association may not be foisted with such liability. He would however, keep an eye on a sum of Rs. 86 lacs that the Owners' Association was holding in terms of the order of the Court. Significant to note, the said sum came as a legacy that the Owners' Association got from Mohit. He would rely upon the decision in the case of Annapurna Kar v. Gour Kishore Das reported in 1998 Volume-II Indian Law Reports Calcutta Page-567. 10. Per contra, Mr. Moloy Ghosh learned Senior Counsel would refer to various paragraphs of the pleadings to show, it was a suit as against the Administrator and not as against Mohit in his personal capacity. The Written Statement would also depict the same way. He would specially refer to paragraph 27 and 41 quoted supra. 10. Per contra, Mr. Moloy Ghosh learned Senior Counsel would refer to various paragraphs of the pleadings to show, it was a suit as against the Administrator and not as against Mohit in his personal capacity. The Written Statement would also depict the same way. He would specially refer to paragraph 27 and 41 quoted supra. He would also rely upon the issues that the learned Judge framed at page-50 to show, the parties did not raise any dispute on such score hence, the learned Judge did not have any occasion to raise such issue. He would refer to Order 14 Rule1 of the Code of Civil Procedure. He would refer to sub paragraph (xxii) of the Written Statement that the Division Bench quoted in the judgment and order dated June 14, 2010. The paragraph is quoted below: "There was no provision for any office for an Administrator of the building. In the circumstances, the defendant no. 1 was initially compelled to function from the corridor on the 14th floor. Subsequently at 20 F for 3 years and after repairs could be carried out to the said flat repaired floors laid, walls plastered, roof repaired and the doors and windows fitted and thereafter occupied 21 B flat to use the same as the Administrator's office." 11. He would also refer to the relevant paragraph of the said decision of the Division Bench appearing at page 123-124. The relevant paragraph is quoted below: "Therefore, the first question that arises for determination in this appeal is whether within the scope of the suit out of which the present appeal arises, the defendant No. 1/appellant is entitled to dispute the transaction between the plaintiffs and the Western Building Corporation or the possession of the plaintiffs once the Western Building Corporation has admitted such possession and the right of the plaintiffs." "In the present proceedings, the appellant has not asserted any independent right of his own in his personal capacity than that of the Administrator appointed by the Court nor has he advanced any defence of adverse possession in his personal capacity. Such being the position, there is no scope of disputing the genuineness of the transaction between the plaintiffs and the Western Building corporation at his instance when the Western Building Corporation has admitted the existence of agreement and the fact of putting the plaintiffs into the possession of the property." 12. Such being the position, there is no scope of disputing the genuineness of the transaction between the plaintiffs and the Western Building corporation at his instance when the Western Building Corporation has admitted the existence of agreement and the fact of putting the plaintiffs into the possession of the property." 12. He would pray for dismissal of the appeal filed by the decree holder. He would also resist any attempt to foisting the liability on Shanta who, according to him, did not inherit any proceeds and/or benefit that Mohit allegedly left during his life time from the office of Administrator. He would rely upon two Apex Court decisions in this regard which are as follows: 1. Liverpool & London S.P. & I Association Limited v. M.V. Sea Success I and another reported in 2004 Volume-IX Supreme Court Cases Page-512. 2. Rangammal v. Kuppuswami and another reported in 2011 Volume-XII Supreme Court Cases Page-220. 13. Mr. Ranjan Bachawat learned senior Counsel appearing for the Owners' Association would raise three issues: (i) The plaintiff filed the suit without leave being obtained hence, the suit could not have been as against the Administrator in his official capacity. (ii) The action as against the Administrator in official capacity would not be maintainable without any leave being obtained from the Court who appointed him to act as such hence, the learned Judge while passing the decree rightly entertained the suit against Mohit in his personal capacity. (iii) The cause title of the suit describing Mohit as Administrator was nothing but a description and would have no nexus with the subject matter of the lis. Hence, the owners could not be held responsible for such mesne profit. 14. He would rely upon the orders passed from time to time holding Mohit responsible for acting beyond his capacity. According to him, Mohit did not file any accounts. After his death, Shanta could not have claimed any better title than Mohit who had no title at all as held by the learned Single Judge hence, she would be obliged to pay the mesne profit for the period when Mohit unauthorizedly held on possession of the flat in question. He would rely upon the decision in the case of Everest Coal Company Private Limited v. State of Bihar and others reported in All India Reporter 1977 Supreme Court Page-2304. Our View: 15. He would rely upon the decision in the case of Everest Coal Company Private Limited v. State of Bihar and others reported in All India Reporter 1977 Supreme Court Page-2304. Our View: 15. Before we advert to the lis particularly, the issue that would arise post decree and post death situation we have to examine orders passed from time to time with little detail as the right answer would lie within themselves. Let us start with the order appointing Mohit as Administrator that we would find at page-268-269 of the second set of paper book that Owners' Association filed before us. We would subsequently call it as additional paper book. By the order dated September 23, 1981 passed in suit No. 343 of 1979, the learned Single Judge modified the original order of appointment dated September 7, 1981 to call upon the intending purchasers and collect outstanding on account of statutory outgoings and take penal step against those purchasers who would default in making such payment. He would discharge such liability of the building out of such collection. This would show, the scope of appointment was extended from time to time. From the judgment and decree dated June 15, 2009 we find, the Administrator was working from the corridor of 14th floor and subsequently one after the other, unused unoccupied flats for his office. In a multi storied building of such stature there would be so many administrative works that might require an office hence, using a part of the building as office space cannot be called as personal use. If we look to the judgment and order of the Division Bench dated June 14, 2010 appearing at page-79-134 we would find, the Division Bench upheld the decree and dismissed the appeal. While doing so, Their Lordships observed, Mohit never asserted independent right of his own in his personal capacity nor did he advance any defence of adverse possession. Such observation was made in the context of the ownership of the flat in question. At that juncture the question of mesne profit was possibly not highlighted, at least, we do not get any such hint. After the decree was affirmed by the Division Bench, the matter went back to the learned Single Judge when a Special Referee was appointed. The present appeal would attack the order dated March 12, 2014 appearing at page 555-563 of the paper book. After the decree was affirmed by the Division Bench, the matter went back to the learned Single Judge when a Special Referee was appointed. The present appeal would attack the order dated March 12, 2014 appearing at page 555-563 of the paper book. The learned Judge in this decision considered the mode that the Special Referee adopted for calculation of the mesne profit at the instance of the decree holder. Smt. Shanta appeared before His Lordship to contend, she had no liability. She would also complain, order dated September 23, 2013 was passed ex-parte and without any notice to her and as such the same would have no binding effect on her. Learned Counsel appearing for her would rather support the report of the Special Referee where the Referee fixed responsibility of payment. The learned Counsel asked for recall of the order dated September 23, 2013, by which the learned Judge substituted her in place of Mohit. Learned Judge held in favour of the appellant to the extent, the Special Referee should not have reduced the area from 6,000 square feet to 2,000 square feet. According to His Lordship, it was a mistake. His Lordship appointed a Special Referee to start the proceeding de novo, while doing so, His Lordship observed "The point that the decree was against the original defendant in his official capacity and his widow is not liable is kept open for any other forum, if the point is so available to Mr. Ghosh's client". 16. We need not go in detail the other orders that were passed from time to time at the post decree stage before the report of the Special Referee could be assailed. 17. Decisions cited at the bar were mostly on the issue of fixation of responsibility that the learned Single Judge reserved for another forum to decide. The decision in the case of Annapurna Kar (supra) dealt with the issue of inheritance of a tenancy right, whereas the decision in the case of Everest Coal Company Private Limited (supra) was on the question of leave to sue a receiver appointed by Court. Mr. Moloy Ghosh learned Senior Counsel relied upon Liverpool (supra) when the others challenged his locus to file the cross appeal/cross objection. According to him, the learned Judge failed to appreciate, the order dated September 23, 2013 was liable to be set aside. Mr. Moloy Ghosh learned Senior Counsel relied upon Liverpool (supra) when the others challenged his locus to file the cross appeal/cross objection. According to him, the learned Judge failed to appreciate, the order dated September 23, 2013 was liable to be set aside. He would rely upon paragraph 108, 125, 130, 131, 132 and 138 of the decision where the Apex Court held an intra-Court appeal maintainable after finding the appellant having a grievance as against the order impugned. He would rely upon the decision of Rangammal (supra) to contend, the averments made in the pleadings should be the basis to decide a lis. 18. In the present case the decree holder applied for setting aside of the report submitted by the Special Referee together with a prayer for recording the death of Mohit and consequent substitution of Shanta in his place as his widow and legal representative. Initially the Court by the order dated September 23, 2013 recorded the death of Mohit and substituted Smt. Shanta in her place. The recording of death is a natural course however, the substitution of Smt. Shanta would depend upon the issue as to whether right to sue survived. Learned Single Judge should have adverted into such issue before going into the other question however, His Lordship kept the issue pending for another forum to decide. Since His Lordship kept the issue reserved for future we would not address on the same. We would also not deal with the contentions of Mr. Ghosh or Mr. Bachawat as to the shifting of responsibility from one to the other. We would only clarify, the substitution of Smt. Shanta must not be construed as fixation of responsibility on her to discharge the liability under the said decree. There are three modes that we could visualize:- (i) Liability to be discharged by Shanta. (ii) Liability to be discharged by the Owners' Association. (iii) The liability would shift to the sum of Rs. 85 lacs that was set apart. 19. Which mode would be the correct one, must be decided at the appropriate stage. It is for the decree holder to have adjudication on the issue in an appropriate proceeding. We do not feel it inclined to address such issue in this appeal. Thus, we do not answer the issue of fixation of liability. 20. 19. Which mode would be the correct one, must be decided at the appropriate stage. It is for the decree holder to have adjudication on the issue in an appropriate proceeding. We do not feel it inclined to address such issue in this appeal. Thus, we do not answer the issue of fixation of liability. 20. On the issue of change of personnel we feel, once the learned Judge held, Special Referee reduced the area further exercise by another Special Referee would be of little hardship as it would unnecessarily delay the process. Rather, it would be apt to send it back to the Special Referee who under-took such exercise to correct his own mistake, if there be any. We thus remit the report back to Sri S.P. Sarkar learned senior advocate to reconsider his report on the issues highlighted by the appellant in their application and the observation of His Lordship so that we can get a comprehensive final report from the Special Referee. 21. The appeal thus succeeds in part and is allowed accordingly. There would be no order as to costs.