# CHITIURI SUBBANNA v. KUDAPA SUBBANNA & OTIIERS

- **Citation:** [1965] 2 S.C.R. 661
- **Court:** Supreme Court of India
- **Decided:** 1964-12-18
- **Bench:** Raghubar Dayal, J. R. Mudholkar, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chitiuri-subbanna-v-kudapa-subbanna-otiiers-3433
- **Pages:** 32

## Headnote

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Code of Civil Procedure (Act 5 of 1908), O. XX. r. 12-Prelimlnary
decree not In accordance with ru/e--Not appealed against-Effect.
Practice and Procedure--Point of law-Raised for the first time at
hearing of appeal-If permissible.
In a suit for possession and mesne profits the High Court gave a
direction in the preliminary decree that the trial court should make an
enquiry into the mesne profits payable by the appellant (judgment debtor),
from the date of the institution of the suit, and p38$ a final decree for
payment of the amount found due up to the date of delivery of possession
of the properties to the respondent
(decree bolder). The trial court
appointed a Commissioner for making the enquiry, and after considering
bis report, passed a final decree for a certain amount. No objection was
taken by the appellant, either before the Commissioner or the trial court
that accounts could be taken under 0. XX, r. 12 Civil Procedure Code,
only for 3 year from the date of the preliminary decree and not till the
later date when possession was delivered to the respondent. In his appeal
to the High Court also, the appellant did not raioe the ground in the memorandum of i\ppeal, but when the appeal was argued he sought to raise the
contention. The High Court did not allow him to do so and dismissed
the appeal. Along with the appeal, the High Court dealt with the cross
E
objections preferred by the respondent in which be claimed enhane<lment
of the amount of mesne profits and partially allowed the cross objections.
In the appeal to the Supreme Court it was contended that (i) the High
Court was in error in not allowing the appellant to raise the objection
based on O.XX, r. 12 of the Code, (ii) the respondent was not entitled
to be granted mesne profits for a period beyond three years from the
date of the preliminary decree and (iii) the High Court was in error in
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enhancing the amount of mesne profits.
HELD (Per Raghubar Dayal and Sikri, JJ.) : (i) 111e High Court
"'"' in error in not allowing the appellant to urge the additional ground
before it. [669 B-C]
It was a pure question of law not dependent on the determination of
any question of the fact and such questions are allowed to be raised for the
first time even at later stages.
Even though the High Court has discretion to allow or refuse an application for raising an additional ground,
the order refusing permission could be interfered with by the Supreme
Court, because, it was not in conformity with the principle that a question of pure law can be urged at any stage of a litigation. [664 H; 666D-F,
G]
There was no question of the appellant conceding before the Commislioner or electing before the trial court that mesne profits could be calculated till the date of delivery of possession when no dispute about the
matter had arisen between the parties. (666 HJ
Further, the respondent could not haYe been prejudiced by the appellant raising the new ground at the bearing of the appeal and not earlier,
662
SUPREME
COURT
REPORTS
(1965] 2 S.C.R.
for, even if the appellant bad raised it before the Commissioner the resA
pondent could not have sued for mesne profits beyond three years, as by
that time, the period of limitation for such a suit had expired. [669 A-BJ
(ii) A decree under O.X.X., r. 12 of the Code, directing enquiry
into mesne profits, however expressed, must be construed to be a decree
directing the enquiry in conformity with the requirements of r. 12(l)(c),
and so the respondent would not be entitled to mesne profits beyond a
period of three years from the date of the preliminary decree. [676 A-BJ
B
It is open to the court to construe the direction in accordance with
the provisions of the rule when such direction is not fully expressed so
as to cover all the alternatives mentioned therein. [673 FJ
The direction in the preliminary decree could not have been appealed
against because, the question about the proper period for which mesne
profits was to be decreed really comes u

## Text

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A
CHITIURI SUBBANNA
v.
KUDAPA SUBBANNA & OTIIERS
December 18, 1964
B
[RAGHUBAR DAYAL, J. R. MUDHOLKAR AND S. M. SIKRI, JJ.)
c
D
Code of Civil Procedure (Act 5 of 1908), O. XX. r. 12-Prelimlnary
decree not In accordance with ru/e--Not appealed against-Effect.
Practice and Procedure--Point of law-Raised for the first time at
hearing of appeal-If permissible.
In a suit for possession and mesne profits the High Court gave a
direction in the preliminary decree that the trial court should make an
enquiry into the mesne profits payable by the appellant (judgment debtor),
from the date of the institution of the suit, and p38$ a final decree for
payment of the amount found due up to the date of delivery of possession
of the properties to the respondent
(decree bolder). The trial court
appointed a Commissioner for making the enquiry, and after considering
bis report, passed a final decree for a certain amount. No objection was
taken by the appellant, either before the Commissioner or the trial court
that accounts could be taken under 0. XX, r. 12 Civil Procedure Code,
only for 3 year from the date of the preliminary decree and not till the
later date when possession was delivered to the respondent. In his appeal
to the High Court also, the appellant did not raioe the ground in the memorandum of i\ppeal, but when the appeal was argued he sought to raise the
contention. The High Court did not allow him to do so and dismissed
the appeal. Along with the appeal, the High Court dealt with the cross
E
objections preferred by the respondent in which be claimed enhane<lment
of the amount of mesne profits and partially allowed the cross objections.
In the appeal to the Supreme Court it was contended that (i) the High
Court was in error in not allowing the appellant to raise the objection
based on O.XX, r. 12 of the Code, (ii) the respondent was not entitled
to be granted mesne profits for a period beyond three years from the
date of the preliminary decree and (iii) the High Court was in error in
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enhancing the amount of mesne profits.
HELD (Per Raghubar Dayal and Sikri, JJ.) : (i) 111e High Court
"'"' in error in not allowing the appellant to urge the additional ground
before it. [669 B-C]
It was a pure question of law not dependent on the determination of
any question of the fact and such questions are allowed to be raised for the
first time even at later stages.
Even though the High Court has discretion to allow or refuse an application for raising an additional ground,
the order refusing permission could be interfered with by the Supreme
Court, because, it was not in conformity with the principle that a question of pure law can be urged at any stage of a litigation. [664 H; 666D-F,
G]
There was no question of the appellant conceding before the Commislioner or electing before the trial court that mesne profits could be calculated till the date of delivery of possession when no dispute about the
matter had arisen between the parties. (666 HJ
Further, the respondent could not haYe been prejudiced by the appellant raising the new ground at the bearing of the appeal and not earlier,
662
SUPREME
COURT
REPORTS
(1965] 2 S.C.R.
for, even if the appellant bad raised it before the Commissioner the resA
pondent could not have sued for mesne profits beyond three years, as by
that time, the period of limitation for such a suit had expired. [669 A-BJ
(ii) A decree under O.X.X., r. 12 of the Code, directing enquiry
into mesne profits, however expressed, must be construed to be a decree
directing the enquiry in conformity with the requirements of r. 12(l)(c),
and so the respondent would not be entitled to mesne profits beyond a
period of three years from the date of the preliminary decree. [676 A-BJ
B
It is open to the court to construe the direction in accordance with
the provisions of the rule when such direction is not fully expressed so
as to cover all the alternatives mentioned therein. [673 FJ
The direction in the preliminary decree could not have been appealed
against because, the question about the proper period for which mesne
profits was to be decreed really comes up for decision at the time of
passing the final decree, by which time, the parties would be in a position
to know the exact period for which future mesne profits could be decroed:
and so, the appeal could be filed only after a final decree is passed and
a. 97 of the Code would be inapplicable. Nor would the direction in the
preliminary decree operate as res judicata either under s. 11 of the Code
or on general principles, because there was no controversy between the
parties. [674 A; E-HJ
Instead of insisting that the court should repeat in the judgment the
various alternatives mentioned in the rule, it would be preferable to construe the judgment in accordance with those provisions, and so construed,
there is no possibility of a decree holder gaining by his own default. [675DE, G.]
Case law reviewed.
Per Mudholbr, J. (Dissenting) : (i) The High Court was right in
refusing leave to the appellant to raise a new ground at the hearing since
not only had be not raised it in the memorandum of appeal but he had
also allowed an enquiry into mesne profits by the Commissioner for a period
longer than 3 years from the date of the decree and participated therein.
(683 GJ
Further, the grant or refusal of ·permission was within the discretion
of the High Court and the High Court had given very good and cogent
reasons for refusing permission.
[684 D-E]
When a party omits to raise an objection to a direction given by a
lower court in its judgment, he must be doemed to have waived his right
and cannot, for the first time at the hearing of an appeal from that decision challen~e the courts' power to give the direction. The proper 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 had been never taken before the court below.
It is only in exceptional cases that the appeltate court may, in its discretion
allow a new ooint to be raised before it, provided there are good grounds
for a11owing ~it to be raised and nO prejudice is caused to the opponent.
[686G; 688 E-GJ
Case Jaw considered.
(ii) On the merits of the contention, even assuming that the direction in the preliminary decree was wrong, that decision has to be given
effect to as it was not challenged in appeal and therefore had become final
under s. 97 of the Code.
Unless it is corrected in the manner provided
in the Code, it will operate as res judicnta between the parties in all subs&-
quent stages of the /is. (689 D-E; 692 BJ
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SUBBANNA Y. SUBBANNA (Dayal, /,)
.6
II may be that where the ·meaning of a term is not clear or ia ambl·
auous, the question of construing it may arise and the court would be
doing the right thing in placing upon it a construction conformable to law.
Bui the direction in the instant case did not suffer from vagueness, ambi·
gutty or such incompleteness u well make its enforcement impossible .. (691
II-CJ
(iii) (By Full Court) : The High Court had raised the rates. ot
meme profits without expressing its reasons for holding that the Subordi·
B
aate Judge was wrong in his findings.
The case should therefore be
remanded to tho High Court and the quantum of mesne profits determined
afresh, but, only up to three years from the date of the preliminary decree
ICCOrding to the majority judgment. (676 E; 681 F; 692 El
CML APPELLATE JURISDICTION : Civil Appeal No. 598 of
1961.
C
Appeal 1rom the judgment and decree dated September 13,
1958, of the Andhra Pradesh High Court in Appeal Suit No. 736
of 1952.
A. V. Viswanatha Sastri, K. Rajlndra Chaudhuri and K. R.
Chaudhuri, for the appellant.
D
K. Bhimasankaram, K. N. Rajagopala Sa.rtri and T. Satyanart>-
yana, for respondent No. 1.
The Judgment of Raghubar Dayal and Sikri JJ. was delivered
by Raghubar Dayal J. Mudholkar
J.
delivered a dissentina
Opinion.
I
Raghubar Dayal, J.-This appeal, presented on a certificate
granted by the High Court of Andhra Pradesh, arises out of execution proceedings in execution of a decree dated March 7, 1938.
Kudapa Subbanna, plaintiff No. 2 and respondent No. 1 here, was
held entitled to the properties mentioned in Schedules A and C
and to 1/24ths share in the properties mentioned in Schedule B
F
attached to the plaint. The defendants in possession of the properties were directed to deliver possession to the decree-holder. The
properties in Schedule B were first to be divided in accordance
with the shares specified in para 9 of the plaint and the decreeholder was to be allowed !he share to which the first plaintiff was
shown to be entitled. The trial Court was directed to make an
G 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.
Pos~ession 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
H
revive and continue the earlier I.A. 429 of 1940 which had been
presented for the ascertainment of future profits and was struck oft
on September 25, 1944. On July 28, 1948, the Subordinate Judge
664
SUPlU!ME
COUllT
llBPOl.TS
1965)2 S.C.ll.
~
decreed the mesne profits and interest thereon for the period from
A
1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was Rs. 17,883-H-3 including
Rs. 10, 790/- for mesne profits. He also decreed mesne profits with
respect to the B-schedule properties upto 1946. TI ey 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 Rs. 19,000/- more stating that the amount of mesne profits actually due to him would be about Rs. 45,000/· but he confined his claim to Rs. 19,000/- only.
On September 13, 1958, the High Court dismissei the appeal,
but allowed the cross-objection, the result of which was that the
amount of mesne profits decreed by the Subordinate Judge with
respect to the A and C schedule properties was increm:ed very substantially.
The amount decreed for mesne profits was raised to
B
c
Rs. 17,242-12-0 and, consequently, the amount of interest also
D
increased. Chitturi Subbanna then obtained leave from the High
Court to appeal to this Court as the decree of the High Court was
one of variance and the value of the subject matter in dispute was
over Rs. 10,000/-.
Chitturi Subbanna, appellant, applied to the Higb. Court for E
permission to raise an additional ground of appeal to the effect
that the trial Court was not entitled to grant mesne pro'its for more
than 3 years from the date of the decree of the High Court. The
High Court disallowed that prayer for the reasons that he had not
taken such a ground in the memorandum of appeal and had, on the
other hand, conceded before the Commissioner and the trial Court II'
that accounts could be taken upto 1943 in respect cf A and C
schedule properties, that he had elected to have the profits determined by the trial Court upto the date of delivery of possession
and that if he had taken the objection earlier, it would have been
open to the second plaintiff-respondent to file a suit for the recovery of mesne profits beyond the three years upto the date of deliG
very of possession. It is urged before us for the appellant that the
High Court was in error in not allowing the appellant to have
raised the. objection based on the provisions of 0.20, r. 12, C.P.C.
We agree with this contention. The question sought to be raised
was a pure question of law and was not dependent on the determination of any question of fact. The first appellate Court ought
H
to have allowed it. Such pure questions of law are allowe<l for the
first time at later stages too.
A
B
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E
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G
SUBBANNA v. SUBBANNA (Dayal, J.)
665
The appellant could not have claimed-and did not claim-a
right to urge the new point which had not been taken in the
grounds of appeal. He made a separate application for permission
te take up that point. The procedure followed was in full conformity with what had been suggested in Wilson v. United Counties Bank, Ltd. (1) to the effect :
"If 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 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 esiablished 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 Connecticut 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 d<;>cument 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 expediency of adopting that course
may be doubted when the plea cannot be disposed of
without deciding. nice questions of fact in considering
which the court of ultimate review is placed in a much
less advantageous position than the courts below."
Again, it was said in M. K. Ranganathan v. Government of
Madra.i( 8 ) :
"The High Court had allowed the Respondent 3 to
raise the question even at that late stage inasmuch as it
H
was a pure question of law and the learned Solicitor-
(I) L.R. [192~1 A.C. 102, 106.
(2) (19501 S.C.R. 852.
(3) (19SS) II S.C.R. 374, 381.
666
SUPREME
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REPORTS
[1965] 2 s.a.
General therefore rightly did not press the first contention
before us."
In Ittyavira Mathai v. Varkey Varkey( 1 ) this Court did not
allow the question of limitation to be raised in this Court as it was
considered to be not a pure question of law but a mixed question
of law and fact. This Court said at p. 911 :
"Moreover, the appellants could well have raised the
question of limitation in the High Court in SUF port 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 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 ta.lcen in the petition made by the appellant before
the High Court for grant of a certificate on the ,ground
that the suit was barred by time. In the circumstances,
we decline leave to the appellant to raise the p<>int of
limitation before us."
The High Court had discretion to allow the application or
to refuse it. The discretion exercised by the High Court is certainly not to be interfered with by this Court exce11t for good
reasons.
We shall deal with th~ reasons given by the Higt: Court for
rejecting the application and, in so doing, indicate w: 1y we consider those reasons not to be good reasons for disallowing the
prayer made in the application.
B
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In Rchmat-un-Nissa Begam v. Price( 2 ) the observations at -,
p. 66 indicate that a discretionary order can be justifiably disturbed
if the Court acts capriciously or in disregard of any legal principle
in the exercise of its discretion. This, however, cannct be taken
to be exhaustive of the grounds on which the discretion< ry order is
to be interfered with. In this particular case the order passed by
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the High Court was not in conformity with the principle that a
question of ;,urc law can be urged 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
Commfrsioner that mesne profits could be legally allowe<I up to the
date of delivery of possession. No party had raised th,; question
H
as to whether mesne profits could be allowed up to d1ree years
(I) A.l.R.1964 S.C. 907.
(2) L.R. •13 I.A. 61.
SUBBANNA V. SUBBANNA (Daya/, J.)
667
A
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 tl1e 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
B
had arisen between the parties. The utmost that can be said is
that both the parties, the decree-holder and the judgment-d~btor,
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 objecc
D
tfon before the Commissioner or the trial Court, does not mean
that he had given his consent for the determination of mesne profits
for the period subsequent to the expiry cf 3 years from the date
of the High Court decree and that the order of the trial Court for
the payment of mcsne profits up to the date of delivery of posscss:on
is an order based on the consent of the parties.
In the circumstances of the case, we arc not prepared to hold
that the omission of the appellant to raise the point before the
trial Court amounts to his waiving his right to raise the objection
on the basis of 0.20, r. 12, C.P.C.
J:
The case reported as London, Chatham and Dov~r Railway
Co. v. South-Eastern Railway Co. (1) is not to the point. The facts
of that case were different.
An agreement between two railway
companies under the authority of an Act of Parliament contained
a provision that all matters in difference between them would be
referred to arbitration under the Railway Companies Arbitration
F
Act (22 & 23 Viet. c. 59). Section 26 of that Act provided that
full effect should be given by all the superior Courts of law and
equity in the United Kingdom, according to their respective jurisdiction .... to all agreements, references, arbitrations and awards,
in accordance with the Act. This provision was construed not to
oust the jurisdiction of th.~ ordinary Courts, but in case of any
G party insisting on the compliance of the condition in the a3reement of disputes being referred to arbitration, the Court was to
stay i!s hands and to order the case to be withdrawn from the
Court. The case was decided by the Court when an appeal against
the finding that the agreement was valid was pending before the
House of Lord'. It is not clear and may, however, be assumed
H
that one of the questions in the appeal was whether the jurisdiction of the Court was ousted if the agreement be a good one. The
--·-------------
(1) L.R. (1889) 40 Cb.D. 100.
668
SUPREME
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i 1965] 2 S.C.R.
House of Lords and the Court of Appeal did not decide that point
A
as it is noted at p. 101 :
"but their Lordships expressly stated that th: judgment of the House of Lords, and also the judgment of the
Court of Appeal, only decided that the High C)urt of
Justice had jurisdiction to try the question of the 11alidity
of the agreement, and did not decide the questio.1 whether the matters in dispute arising under the agr1:ement
ought to be tried by arbitration."
One of the parties applied to the Court to postpone the trial of
B
the action on the ground that certain points other than the point
regarding the ouster of jurisdiction of the Court were before the
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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
0
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 partie; ought not
to be allowed to raise the point of jurisdiction. The reason given
by Cotton, L.J., at p. 105, is stated thus:
"If when they can insist on the Court not going into
E
the merits of the case and deciding questions be tween
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 the:i had
insisted on it in a proper way and at a proper time."
F
In the present case the appellant did not let the trial Court
determine the question of the period up to which me:me profits
could be decreed, as he had raised no controversy in th is respect.
He did not take a chance of the judgment being given one way or
the other and therefore the attempt of the appellant to· raise the G
question in the High Court was not to get round the judgment of
the Court which happened to go against him.
The Commissioner conducted the enquiry about meme profits
from August 29, 1946 till December 4, 1947. Suits for mesne
profits for the periods between March 7, 1941 and February 28,
1943 could not be instituted in August 1946 as the period of 3 H
years' limitation for the institution of a suit for mesne profits of
those years had expired by then. It follows that even if the appel-
SUBBANNA V. SUBBANNA (Dayal, J.)
669
A Jant had raised the objection that mesne profits could not be
decreed for the period subsequent to March 7, 1941, the decreeholder respondent could not have sued in Court for the recovery
of those mesne profits when he had failed to sue for them within
the specified period of limitation and therefore could not have been
prejudiced by the appellant's raising the new ground at the hearing
B of the appeal.
We are therefore of opinion that the High Court was in error
in not allowing the appellant to urge this additional ground before
it.
The main point for determination in this appeal is whether
C mesne profits could be awarded to the decree-holder for a period
subsequent to the expiry of three years from the date of the High
Court's decree, i.e., subsequent to March 7, 1941. The contention for the judgment-debtor is that mesne profits cannot be awarded for the period subsequent to March 7, 1941 in view of the proD
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visions of Order 20, r. 12, C.P.C. which reads :
"12. (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits,
the Court may pass a decree-
( a) for the possession of the property;
(b) for the rent or mesne profits which have accrued
on the property during a period prior to the institution
of the suit or directing an inquiry as to such rent or mesne
profits;
(c) directing an inquiry as to rent or mesne profits
from the institution of the suit until-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgmentdebtor with notice to the decree-holder through the
Court, or
(iii) the expiration of three years from the date of
the decree,
whichever 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./65-9
670
SUPREME
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REPORTS
(1965] 2 S.C.R
construed to mean a direction for an inquiry into the mesne profits
A
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 Lailiri v. Shoshi
Slzikhareswar Roy (') and to other cases which followed that decision. The contention for the decree-holder is that the preliminary B
decree directed the enquiry into the mesne prpfits 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
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of 0. 20. It has also been urged that the judgm1mt-debtor is
cstopped from raising the contention that he is not liable to pay
mesne profits subsequent to March 7, 193 8 in view ol his conduct
amounting to his consent in the award of mesne profit; subsequent
to March 7, 1938. We have already held that th•~ appellant's
conduct did not amount to his consenting to mesne :'rofits being
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decreed for the period subsequent to March 7, 1941.
There is no provision of law other than the provision of r. 12,
0.20, C.P.C. which empowers the Court to decree mesne profits
subsequent to the institution of a suit for the recovery of possession of immovable property and mesne profits. It is :~ot disputed
E
for the respondent decree-holder that r. 12, 0.20, d~es not empower a Court to direct an inquiry and pass a final decree with
respect to mesne profits for a period exceeding 3 yeas from the
date of the decree. This is very clear from the Jang
1iage of this
rule.
The only question is wheiher a decree wherein the Court
does not mention the period for which mesne profits would be paid F
or the Court states that mesne profits would be payable up to the
delivery of possession, should be construed to be a decree directing
that mesne profits would be decreed for a period of 3 years from
the date of the decree, if possession be not delivered within that
period. The precedent case law is in favour of the contention for
the appellant. The ratio decidendi mainly is that the Court had G
no power to pass a decree against the clear provisions of r. 12,
0.20, and that therefore the decree should be so con:;trued as to
be in accordance with these provisions.
The law with respect to the decree for mesne profits had been
changing from time to time, but all the same the expressions in H
the decree about the period for which mesne profits were to be
(1) L.R. 27 I.A. 110.
-
~
~·
SUBBANNA V. SUBBANNA (Dayal, /.)
671
A
awarded have been considered to be matters of construction and
had been construed in accordance with the law at the relevant time.
Sections 196 and 197 of the Code of Civil Procedure of 1859
(Act VIII of 1859) dealt with the decree for mesne profits. Section. 196 provided that when the suit was for land or other property
B paymg rent, the Court might provide in the decree for the payment of mesne profits or rent on such land or other property from
the date of the suit until the date of delivery of possession to the
decrec-hold~r, with intere.st thereon at such rate as the Court may
think proper. . It is to be seen that the Court was not merely to
drrcct an enqmry about mesne profits and then to pass a decree as
C 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 de~ree. Mesne profits could be decreed up to the
delivery of possession.
The decree was for mesne profits which
were to be determined in execution.
D
In Fakharuddin Mahomed Ahsan Chowdhry v. Official Trustee
E
F
of Bengal(') the High Cou:t 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 tenns 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 claimable up to the time of
possession.
Section 211 of the C<;ide of Civil Procedure, 1882 (Act XIV
of 1882) provided for decreeing the mesne profits up to delivery of
possession or up to 3 years after the decree, whichever evl'.nt took
place e.arlier. The change of law therefore restricted the power of
G the Court to grant mesne profits to a period up to 3 years from the
date of the decree. In Girish Chunder's Case( 2 ) the Privy Council
had to consider a decree for mesne profits which was passed when
s. 211 was in force. The decree in that case, which went up to
the Privy Council, was passed in 1883 and had provided that the
decree holder would get mesne profits for the period of dispossesH sion. Possession over the village N was not recovered till 1892.
The trial Court allowed mesne profits with respect to that village
(I) L. R· I.A.197.
(2) L.R. 27 I.A. 110.
672
SUPREME
COURT
REPORTS
[ 1965] 2 S.C.R.
up to the date of delivery of possession. The High Court did not A
agree and allowed mesne profits for only 3 years after the date of
the decree. It was said at p. 126 :
"As to the village of N, their Lordships agr<e with
the High Court. The Subordinate Judge gives the plaintiff mesne profits up to the date of possession. B 11t that
is more than three Jlears from the date of the decree,
and to the extent of the excess is unauthorised by s. 211
of the Code."
B
The principle enunciated in this case about the construction of the
decree for mesne profits for the period of dispossessi,Jn was followed subsequently by the various High Courts on the ground that
C
the Court had no power to award mesne profits for a pe::iod beyond
three years from the date of the decree and that tl.erefore the
decree should be construed to be subject to the condition that if
possession is not delivered within three years of the decree, the
mesne profits would be awarded for the period of three years from
the date of the decree. These views were expressed in connection D
with decrees which eit!Jer did not specify any period for the payment of mesne profits or expressly stated that mesne profits woul!l
be payable only until delivery of possession.
In Venkata Kumara v. Subbayamma('), Uttamrani v. Kisl\ordas(2) and Trailokya v. Jogendra( 3 ) the decree simply mentioned
E
the starting point of the period for which mesne profits were decreed or for which an enquiry about them was to be made. It
may be said, as urged for the respondent, that it was open to the
Courts to construe the decree when 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 s J in Girish F
Chunder's Case(') where the decree provided that ·he decreeholder would get mesne profits for the period of &:possession.
Similarly in Godayarti Raja v. Ramachandraswami( 0 I, Narayan
v. Sono("), Kunwar Jagdish Chandra v. Bulaqi Das(1 ) and Kanai
Lal v. Shyam Kishore( 8 ) the decree allowed mesne profits for the
period of dispossession. It cannot be said that the decree in these G
cases was in any way vague or incomplete in the sense that its
meaning was not clear. Yet in all these cases the Court; construed
the decree in a manner as would make it in accordam:e with the
law as laid down in r. 12, 0.20, C.P.C.
(t) A.I.R. 1953 Mad. 226,
(3) l.L.R. 35 Col. 1017.
(S} A.I,R. 1943 Mad. 354.
(7) I.L.R. (1959] l All. 114.
(2} l.L.R. :Z.I Dom. 149.
(4) L.R. 27 I A 110.
(6} I.L.R. :Z.I Bom. 345.
(8) l.L.R. 1!159 Cal. 76·
H
SUBBANNA V. SUBBANNA (Daya/, J.)
673
A
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
B vested in the Courts by the provisions of 0.20, r. 12(1) (c), C.P.C.
The Court is deemed to exercise the power in accordance with la\l\f
and therefore a decree~ which decrees or directs enquiry about
mesne profits for the period of dispossession or until delivery of
possession is construed as a decree for mesne profits for a period
of three years from the date of the decree if possession is not deliC
vered within that period. This power was given to the Court in
order to avoid multiplicity of suits between the decree-holder and
the judgment-debtor for mesne profits which the decree-holder
could rightly claim. The period was, however, restricted to three
years in order to discourage decree-holders from making delays in
D
taking possession. If a decree-holder be not diligent in executing
the decree, he would have to forego mesne profits for the period in
excess of three years or would have to institute separate suits to
recover them. The Privy Council did not pass its order in Girish
ChundC'!se( 1 ) on the basis of the decree being va~ue or incomplete. It simply held that the decree for a period in excess of three
J:
years was not authorized by s. 211 of the Code of Civil Procedure
of 1882.
We are therefore of opinion that it is open to the Court to construe the direction in the preliminary decree about the inquiry with
respect to future mesne profits when such direction is not so fully
exnre,sed as to cover all the alternatives mentioned in 0 20, r. 12
F
(I) (c), C.P.C. and to hold that the decree be construed in accordance with those provisions.
It is urged for the decree-holder respondent that the trial Court,
when passing the final decree, could not have ignored what had
been d~creed under the preliminary decree as no appeal against the
G preliminary decree had been preferred ands. 97, C.P.C.. orovided
that where any party aggrieved by a preliminary decree passed
after the commencement of the Code did not appeal from such
decree, it would be precluded from disputing its correctness in any
appeal which might be preferred from the final decree. The object
of s. 97 is that questions which h8d been urged by the parties and
H
decided by the Court at the stage of the preliminary decree will not
· be open for re-agitation at the stage of the preparation of the final
(I) L.R. 27 I.A. 110.
674
SUPREMB
COURT
REPORTS
[1965] 2 SC.R
decree and would be taken as finally decided if no appeal had A
been preferred against the preliminary decree.
The provisions of
this section appear to be inapplicable to the present case.
The preliminary decree directed an inquiry about L'Ie mesne
profit~ from the date of the institution of the sui:: U!) to the date of
delivery of possession to the decree-holder.
The decree-holder B
could not have felt aggrieved against this order. The judgmentdebtor could not have insisted for detailing all the various alternatives mentioned in 0.20, r. 12(1 )(c) and h~ could not have
expected that possession would not be taken wi1:hin three years of
tho decree. The direction about the enquiry wifo respect to future
mesne profits does not amount to an adjudication and certainly C
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 holdei before the institution of the suit. The direction was given on account of a special
power given to the Court under 0.20, r. 12(l)(c) of the Code to
make such a direction if it considered it fit to do so. It was within
D
the. discretion of the Court to make the direc1ion or not.
The
Court does not decide, when making such .a direction, the period
for which the decree-holder would be entitled to get mesnc profits.
No such point can be raised before it. The judgment debtor's Jia-'
bility to mesne profit's arose under the ordinary law and a suit for E
realizing mesne profits could be separately filid, by the decreeholder. The provisions of 0.20, r. 12(l)(c), are just to avoid
multiplicity of suits with consequent harassment to the parties. The
mere fact that the direction for an enquiry into mesne profits is
contained in a preliminary decree does not make it such a part of
'the decree against which alone appeal could have been filed. The F
appeal could be filed only after a final decree i; passed decreeing
certain amount for mesne profits to the decree-holder. It follows
that the question about the proper period for which mesne profit~
was to be decreed really comes up for decision at the time of passing
the final decree by which time the parties in the suit would be in a
position to know the exact period for which future mesne profits
G
could be decreed in view of the provisions of 0.20, r. 12(l)(c).
The direction in the preliminary dt;etce c; ·nnot operate, in
terms of s. 11 C.P.C. or on general principles, ls res j11dicnta for
the simple reason, as sta!ed earlier, that the dir dion is not based
on the decision of any matter in controversy letween the parties
and is given in the exercise of the power vested in the Court under H
0.20, r. 1211 )(c). Again, for similar reasons, the princiolc that a
· Court can decide a question within its jurisdiction wrongly as well
' .
SUBBANNA V. SUBBANNA (Dayal, J.)
67 5
A
as rightly and, if the decision said to be wrong had become final,
the Courts have to respect it, will not apply to these cases.
We therefore hold that the judgment-debtor appellant is not
precluded from contending that mesne profits could not be awarded for a period exceeding three years from the date of the decree.
B
We may now consider the question from another aspect. Ruic
12. 0.20, C.P.C. requires the Court to direct, at the time of passing
the preliminary decree, an inquiry as to mesne profits from the
institution pf the suit until the actual delivery of possession of tllc
property to the decree-holder or until the expiration of three years
from the date of the decree whichever event first occurs.
The
C Court at the time of the passing of the decree is not in a position to
say which of the three events mentioned in cl (c) ·Of sub-r. (l) 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 judgD mcnt or the judgment and the decree for mesne profits is to be
cpnstrued 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
E
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
F
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 had expired from the date of the decree.
Lastly, we may draw attention to a possibility of the decreeholder gaining by his own default, if he did not take possession for
G a period longer than 3 years after the date of the decree.