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TMI Blog1964 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... Court was directed to make an enquiry into the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that be found due up to the date of delivery of possession to the second plaintiff. Possession over the properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On June 23, 1945, the decree-holder filed I.A 558 of 1949 to revive and continue the earlier I.A. 429 of 1940 which had been presented for the ascertainment of future profits and was struck off on September 25, 1944. On July 28, 1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was ₹ 17,883-8-3 including ₹ 10,790/- for mesne profits. He also decreed mesne profits with respect to the B-schedule properties upto 1946. They are not in dispute now. On April 22, 1949, Chitturi Subbanna, 1st defendant, appealed to the High Court. The decree-holder filed cross- objections and claimed ₹ 19,000/- more stating that the amount of mesne profits actually due to him would be about ₹ 45,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the Court which is to hear the appeal. In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari(2) this Court allowed a question of law to be raised at the hearing of the appeal even though no reference to it had been made in the Courts below or in the grounds of appeal to this Court. This Court said : If the facts proved and found as established are sufficient to make out a case of fraud within the meaning of section 18, this objection may not be serious, as the question of the applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final court of appeal. The following observations of Lord Watson in Con- necticut Fire Insurance Co. v. Kavanagh ([1892] A.C. 473) are relevant. He said : 'When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at any stage of the litigation, be it in the court of the last resort. There was no question of the appellant's conceding before the Commissioner that mesne profits could be legally allowed up to the date of delivery of possession. No party had raised the question as to whether mesne profits could be allowed up to three years subsequent to the -date of the High Court decree or up to the later date when possession was delivered. When no such dispute arose, there was no question of the appellant's making any such concession. Similarly, no question of the appellant's electing to have the profits determined by the trial Court up to the date of delivery of possession could have arisen when no dispute about this matter had arisen between the parties. The utmost that can be said is that both the parties, the decree-holder and the judgment-debtor, were under the impression that mesne profits could be awarded till the date of delivery of possession as directed by the decree of the High Court. The fact that -the appellant raised no such objection before the Commissioner or the trial Court, does not mean that he had given his consent for the determination of mesne profits for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ouster of jurisdiction of the Court were before the House of Lords for decision. The prayer was rejected. The parties went on with the trial of this action and got a judgment of the Court upon the evidence on the matter in dispute between them. It was urged in the Court of Appeal that the Court had no jurisdiction to try that matter and that it could be determined only in arbitration. The Court of Appeal said that the Court was not deprived of its jurisdiction to determine the matters in dispute if neither party insisted on arbitration and that the parties ought not to be allowed to raise the point of jurisdiction. The reason given by Cotton, L.J., Lit p. 105, is stated thus If when they can insist on the Court not going into the merits of the case and deciding questions between the parties, they abstain from doing so, and are defeated on the merits'. in my opinion it is too late to insist before the Court of Appeal on any right to object to the jurisdiction of the Court which they might have had if they had insisted on it in a proper way and at a proper time. In the present case the appellant did not let the trial Court determine the question of the period up to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. It is urged that the direction in the decree for an inquiry into the mesne profits up to the date of delivery of possessions should be L4Sup.165-9 construed to mean a direction for an inquiry into the mesne profits up to the date of delivery of possession or up to three years from the date of the decree, whichever be earlier, as that would be consistent with what the law provides. In support of the contention, reference has been made to Girish Chunder Lahiri v. Shoshi Shikhareswar Roy(1) and to other cases which followed that decision. The contention for the decree-holder is that the preliminary decree directed the enquiry into the mesne profits from the date of the institution of the suit up to the date of delivery of possession and that this direction in the decree cannot be ignored, when inquiring into the mesne profits or when passing the final decree, even if it be not in full conformity with the law laid down in r. 12 of O. 20. It has also been urged that the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court may think proper. It is to be seen that the Court was not merely to direct an enquiry about mesne profits and then to pass a decree as the present provisions require and that there was no limitation about decreeing mesne profits for a period of 3 years only from the date of the decree. Mesne profits could be decreed up to the delivery of possession. The decree was for mesne profits which were 'Lo be determined in execution. In Fakharuddin Mahomed Ahsan Chowdhry v. Official Trustee of Bengal(1) the High Court decree declared the plaintiff to be entitled to possession of the land mentioned in the kabinnama with wasilat from the commencement of Srabun 1267 and did not say in express terms the time up to which the wasilat were to be paid. The plaint was also not very clear in stating the time up to which wasilat were claimed. The Privy Council construed the decree to award mesne profits up to the delivery of possession as the reasonable construction would be that the Court, with a view to carrying out the object of the legislature, viz., the prevention of unnecessary litigation and multiplication of suits, intended to give, with possession, that wasilat which was by law claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the actual language of the decree did not indicate the other terminus of the period for which mesne profits could be claimed. It was however not so in Girish Chunder's Case(4) where the decree provided that the decree holder would get mesne profits for the period of dispossession. Similarly in Godayarti Raja v. Ramachandraswami(5), Narayan v. Sono(6), Kunwar Jagdish Chandra v. Bulaqi Das (7 ) and Kanai Lal v. Shvam Kishore(8) the decree allowed mesne profits for the period of dispossession. It cannot be said that the decree in these cases was in any way vague or incomplete in the sense that its meaning was not clear. Yet in all these cases the Courts construed the decree in a manner as would make it in accordance with the law as laid down in r. 12, O.20, C.P.C. The decrees have been so construed not on account of the vagueness of the expressions used for decreeing mesne profits or directing the inquiry about mesne profits but on account of the fact that the decree for future mesne profits or directing enquiry about them is not based on the decision of any controversy between the parties but is made in the exercise of the discretionary power vested in the Courts by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of this section appear to be inapplicable to the present case. The preliminary decree directed an inquiry about the mesne profits from the date of the institution of the suit up to the date of delivery of possession to the decree-holder. The decree-holder could not have felt aggrieved against this order. The judgment debtor could not have insisted for detailing all the various alternatives mentioned in O.20, r. 12(1) (c) and he could not have expected that possession would not be taken within three years of the decree. The direction about the enquiry with respect to future mesne profits does not amount to an adjudication and certainly does not amount to an adjudication of any controversy between the parties in the suit. It has no reference to any cause of action which had arisen in favour of the plaintiff- decree holder before the institution of the suit. The direction was given on account of a special power given to the Court under O.20, r. 12(1) (c) of the Code to make such a direction if it considered it fit to do so. It was within the discretion of the Court to make the direction or not. The Court does not decide, when making such a direction, the period for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of r. 12 will determine the period for which mesne profits would be payable to the decree-holder Either, therefore, the Court has to repeat the various alternatives mentioned in this clause in the judgment and the decree which is to follow the judgment or the judgment and the decree for mesne profits is to be construed in accordance with these provisions. It is preferable to construe it in this way rather than to insist that the Court should mechanically repeat in the judgment and decree the various provisions of cl. (c). It may sometimes even happen that the enquiry into mesne profits is completed before the expiry of 3 years and that the final decree follows in due course while in fact no possession had been delivered by then. It would not be possible for the judgment-debtor to contend at that time that the decree has not been properly prepared and that it should state that in case possession is not delivered within the period of three years, mesne profits would be payable only for the period of three years from the date of the decree. It does not appear to be desirable that the passing of the final decree be put off till either possession is delivered or a period of three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 17 years from Septem- ber 1926 to March 1943 into three periods, viz., 1926 to 1930, 1931 to 1940 and 1941 to 1943. The middle period between the years 1931 and 1940 was a period of depression and the last period was one in which prices of commodities had risen to some extent on account of World War 11. In view of these considerations, the Commissioner fixed the rate of profits from land differently for each period. The trial Court fixed at first a normal rate i.e., a rate which was considered adequate for the first and the last period, then made allowance for the period of depression and calculated mesne profits at a lower rate for the ten years between 1931 and 1940. The High Court appears to have missed noticing the fact of the trial Court calculating mesne profits at a lower rate for the period of ten years. It fixed one rate for the period 1926 to 1940 and another rate for the period 1941 to 1943, and thus overlooked the long period of depression. It is on this account that the mesne profits ordered by the High Court are very much higher than what were fixed by the trial Court. If this fact had not been ignored, the difference between the two amounts would not have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 at ₹ 5 per acre. The Subordinate, Judge fixed mesne profits at ₹ 10 for the .95 acres in area and the proper tax for these items at Re. 1. The High Court raised the rate of mesne profits to ₹ 20 for the period up to 1940 and ₹ 30 for the subsequent period, but confirmed the finding about the amount of tax. In making this order the High Court seems to have been under some confusion, for, the basis of its increasing the profits seemed to be the fact that the tax on these items was ₹ 5, as it said : He (the Subordinate Judge) confirmed the finding of the Commissioner in this behalf. The Commissioner gives no reasons as to how he fixed the profits at ₹ 10 for the items. It is stated that the tax paid on the land is Rs. 5. We are inclined to think that it would be proper to fix ₹ 20 for the items up to 1940 and ₹ 30 for 1941 to 1943. The tax of Re. I deducted by the Subordinate Judge is confirmed. The basis for raising the amount of mesne profits vanishes, when the High Court finally agrees with the Subordinate Judge that the tax would be Re. 1. Another consideration is that the Subordinate Judge calculated mesne profits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l profits for the land comprised in these items at ₹ 35 per acre. His reasons were It is seen from the evidence of R.W. 26 that the prices of land and maktas rose about 10 years after China Bapanna's death which took place in 1915. If this statement were to be taken as correct and if, according to Exhibits P 1O and P- 1 1, the rent realised by dry lands works out to ₹ 30 per acre, it cannot be said to be unreasonable or excessive to fix the profits on these dry lands at ₹ 35 per acre from 1925 onwards. It may also be remembered that prices rose after the close of the 1918 war. The Commissioner has fixed it at the rate of ₹ 30 only. I would however fix the profits on these dry lands at ₹ 35/- per acre per year and the petitioner would be entitled to profits at this rate on items 1 and 4 also from 1926. The High Court reduced the rate of profits to ₹ 30 per acre for the period up to 1940 and raised it to ₹ 60 per year for the period 1941 to 1943 and stated, in this connection : The learned Subordinate Judge increased the rent from ₹ 30 to ₹ 35 without giving any reasons. We are inclined to hold that in respect of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other is to set aside the decree of the High Court and restore that of the Subordinate Judge with respect to the quantum of mesne profits up to March 7, 1941, in view of the facts that the mesne profits awarded against the appellant are for the period between 1926 and 1943 and that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such a consideration, learned counsel for the appellant had ex- pressed, without prejudice, his client's agreeing to the calculation of mesne profits at the rate determined by the trial Court and, consequently, to the decree for mesne profits passed by that Court, but the learned counsel for the decree-holder respondent had stated that his client would prefer a fresh decision of the High Court on the point in case this Court found that the High Court was not justified to raise the amount of mesne profits. The respondent is more interested in the early finalisation of the mesne profits than the appellant and so we would order in conformity with his wishes. We therefore allow the appeal with costs of this Court, set aside the decree of the Court below and remand the case to the High Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed this question either in his counter affidavit in answer to the application made by respondent No. 1 for the appointment of a Commissioner for determining mesne profits nor had he raised it before the Commissioner. On the other hand it was conceded before the Commissioner, as also the Subordinate Judge, that accounts can be taken up to the year 1943 in respect of the properties described in Schedules A and C to the plaint and up to 1946 in respect of properties described hi Schedule B to the plaint. For the first time, however, when the appeal was argued before the High Court of Andhra Pradesh the appellant raised the contention that by virtue of the provisions of O.XX, r. 12 the respondent No. 1 was not entitled to the award of mesne profits beyond three years from the date of the preliminary decree. In regard to this objection the High Court observed : As the appellant raised no dispute and elected to have the profits determined by the subordinate Judge up to the date of delivery of possession we are not inclined to permit the appellant to raise this new ground of appeal. However, as the decision of the High Court was open to further appeal it heard the parties on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd precisely informed of the case which they have to meet. Their efforts are naturally directed to the contentions which are put forward by the appellants. They are entitled to treat as abandoned contentions which are not set forth. lf in exceptional cases parties desire to add new grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the Court which is to hear the appeal. In the present case, both in the Court of Appeal and before your Lordships, entirely new contentions have been submitted on behalf of the defendants. The practice is extremely inconvenient and ought in my judgment to be discouraged in every possible way. (Italics mine). Further, we cannot lose sight of the fact that the grant or refusal of permission to raise a new ground was within the discretion of the High Court. The High Court has given very good and cogent reasons for refusing permission to the appellant to raise the new plea and not acted capriciously, as would be clear from the following passage in its judgment : In the original grounds of appeal, no objection was taken as to the period for which mesne profits ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under Art. 47 of the Limitation Act, the period of limitation is to be computed not from the date of the revisional order but from the date of the original order. Had he done so, we have no doubt that the respondents would at least have placed on record by amending the plaint the date on which the plaint was instituted in the court of the Munsiff. Thus had the plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time on 4-3-1118 when the plaint was represented to the District Court, computing the period of limitation even from the date of the original order. Moreover, the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court. Had they done so, the High Court would have looked into the records before it for satisfying itself whether the suit was within L4Sup./65 time or not. The point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Arbitration Act. Section 26 of the Act required the court where one of the parties to the agreement insisted upon it, to give effect to and to act in accordance with the agreement, so far as the submission to arbitration was concerned. The defendant pleaded the arbitration agreement in defence while the plaintiff challenged its validity. A question was raised by the defendant about the competency of the court to adjudicate upon the validity of the agreement. 'Me trial Judge held in favour of the plaintiff and his decision was upheld by the court of appeal. The defendant took the matter to the House of Lords and while the appeal was pending there the case came up before Kekewich J. One of the questions in the appeal was whether, if the agreement was a good one, the jurisdiction of the Court was ousted. The defendant made an application for postponement of the action because certain other points decided by the Court of Appeal which had gone to the House of Lords would be material. But the defendant did not say in the application that the question about the jurisdiction of the Court was also before the House of Lords and that for this reason it ought not to be put to the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er function of an appellate court is to correct an error in the judgment or proceedings of the court below and not to adjudicate upon a different kind of dispute a dispute that was never taken before the court below. It is only in exceptional cases that the appellate court may in its discretion allow a new point to be raised before it provided there are good grounds for allowing it to be raised and no prejudice is caused thereby to the opponent of the party permitted to raise such point. But where the appellate court in exercise of its discretion refuses leave to a party to raise such point there is little scope for any indulgence being shown by this Court. This would suffice to dispose of the question whether mesne profits could be awarded till the date of delivery but as my learned brother has considered that question on merits, I must deal with it as well. I regret my inability to agree with the decision of my learned brother on the merits of the first point. There is no doubt whatsoever that under O.XX, r. 12 (c) of the Code, a court has to direct enquiry as to mesne profits from the date of institution of the suit until (i) the delivery of possession to the decree- holder; (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgagee at the date of the preliminary decree. How can the amount due to the mortgagee as on the date of preliminary decree be declared unless the net profits realized by him from the mortgaged property are debited against him ? The statutory liability of the mortgagee to account up to the date of the preliminary decree would be the subject-matter of dispute in the suit up to the date of the said decree. The Court has to ascertain the amount due under the mortgage in terms of the mortgage deed and deduct the net realizations in the manner prescribed in s. 76(h) of the Transfer of Property Act and ascertain the balance due to the mortgagee on the date of the preliminary decree. If the mortgagor did not raise the plea, he would be barred on the principle of res judicata from raising the same, as the said matter should be deemed to have been a matter which was directly and substantially in issue in the suit up to that stage. It is settled law that though a mortgage suit would be pending till a final decree was made, the matters decided or ought to have been decided by the preliminary decree were final. Suppose the mortgagor paid certain amounts to the mortgagee before the prelimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the direction in question vague, ambiguous or incomplete. In order to ascertain whether a particular term or direction in a decree is clear and complete or vague and ambiguous the court must ordinarily confine its attention to the direction itselfl. It will be justified in looking to the other provisions in the decree if there appears to be a doubt about the meaning of its terms or if any of the terms conflict with another part of the decree. But where there is no such doubt or conflict the occasion to look at the other terms of the decree cannot arise. It is, however, not the suggestion of Mr. Viswanatha Sastri that this Particular term is inconsistent with any of the other terms of the decree. His argument is that if the term is taken by itself it would be in conflict with law and so we must read in it the whole of the provisions of O. XX, r. _12(1) (c). But then the High Court has clearly selected only a portion of this provision and made that alone as a term of its decree, omitting the rest of it. The argument of learned counsel in substance amounts only to this : that the High Court in acting in this manner committed an error of law, but mere error of law does not vitiate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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