PETITIONER:
CHITTURI SUBBANNA
Vs.
RESPONDENT:
KUDAPA SUBBANNA & OTHERS
DATE OF JUDGMENT:
18/12/1964
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
SIKRI, S.M.
CITATION:
1965 AIR 1325 1965 SCR (2) 661
CITATOR INFO :
R 1979 SC1214 (21,26)
D 1984 SC1696 (14)
ACT:
Code of Civil Procedure (Act 5 of 1908), O. XX. r. 12-
Preliminary decree not in accordance with rule-Not appealed
against-Effect.
Practice and Procedure-Point of law-Raised for the first
time at hearing of appeal-If permissible.
HEADNOTE:
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 pass 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
holder). The trial court appointed a Commissioner for
making the enquiry, and after considering his 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 O. 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 raise the
ground in the memorandum of appeal, 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
objections preferred by the respondent in which he claimed
enhancement 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 enhancing the amount of
mesne profits.
HELD (Per Raghubar Dayal and Sikri, JJ.) : (i) The High
Court was 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
Commissioner 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 H]
Further, the respondent could not have been prejudiced by
the appellant raising the new ground at the hearing of the
appeal and not earlier,
662
for, even if the appellant had raised it before the
Commissioner the respondent 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-B]
(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(1) (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-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 F]
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 decreed-. and so, the appeal could be filed only after a
final decree is passed and s. 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-H]
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 Mudholkar, 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 G]
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 deemed to
have waived his right and cannot, for the first time at the
hearing of an appeal from that decision challenge 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 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 to the opponent. [686G; 688 E-G]
Case law 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 judicata between the parties in
all subse-quent stages of the lis. [689 D-E; 692 B]
663
It may be that where the meaning of a term is not clear or
is ambiguous, 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. But the direction in the
instant case did not suffer from vagueness, ambiguity or
such incompleteness as well make its enforcement impossible.
[691 B-C]
(iii) (By Full Court) : The High Court had raised the
rates of mesne profits without expressing its reasons for
holding that the Subordinate Judge was wrong in his
findings. The case should therefore be remanded to the High
Court and the quantum of mesne profits determined afresh,
but, oniy up to three years from the date of the preliminary
decree according to the majority judgment. [676 E; 681 F;
692 E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 598 of 1961.
Appeal from 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. Rajindra Chaudhuri and K. R.
Chaudhuri, for the appellant.
K. Bhimasankaram, K. N. Rajagopala Sastri and T.
Satyanarayana, for respondent No. 1.
The Judgment of Raghubar Dayal and Sikri JJ. was delivered
by Raghubar Dayal J. Mudholkar J. delivered a dissenting
Opinion.
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 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 decree-
holder was to be allowed the share to which the first
plaintiff was shown to be entitled. The trial 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
664
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 Rs. 17,883-8-3
including Rs. 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 Rs. 19,000/- more stating that the
amount of mesne profits actually due to him would be about
Rs. 45,0001- but he confined his claim to Rs. 19,000/- only.
On September 13, 1958, the High Court dismissed 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
increased very substantially. The amount decreed for mesne
profits was raised to Rs. 17,242-12-0 and, consequently, the
amount of interest also 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 High Court for
permission to raise an additional ground of appeal to the
effect that the trial Court was not entitled to grant mesne
profits 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 that accounts
could be taken upto 1943 in respect of A and C schedule
properties, that he had elected to have the profits deter-
mined 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 deli- G 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 O .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 to have allowed it. Such pure
questions of law are allowed for the first time at later
stages too.
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 to 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 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 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
Madras (3) :
“The High Court had allowed the Respondent 3
to raise the question even at that late stage
inasmuch as it was a pure question of law and
the learned Solicitor-
(1) L.R. [1920] A.C. 102,106.
(2) [1950] S.C.R. 852.
(3) (1955) 11 S.C.R. 374, 381.
666
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 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
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 on the ground that the suit was
barred by time. In the circumstances, we
decline leave to the appellant to raise the
point 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 except for
good reasons.
We shall deal with the reasons given by the High Court for
in rejecting the application and, in so doing, indicate why
we consider those reasons not to be good reasons for
disallowing the prayer made in the application.
In Rehmat-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, cannot be taken to be exhaustive
of the grounds on which the discretionary order is to be
interfered with. In this particular case the order passed
by the High Court was not in conformity with the principle
that a question of pure 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 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
(1) A.I.R.1964 S.C. 907.
(2) L.R. 45 I.A. 61.
667
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 the
period subsequent to the expiry of 3 years from the date of
the High Court decree and that the order of the trial Court
for the payment of mesne profits up to the date of delivery
of possession is an order based on the consent of the
parties.
In the circumstances of the case, we are 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 O.20, r. 12, C.P.C.
The case reported as London, Chatham and Dover 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 Act (22 & 23 Vict.
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 juris-
diction…. to all agreements, references, arbitrations and
awards, in accordance with the Act. This provision was
construed not to oust the jurisdiction of the ordinary
Courts, but in case of any party insisting on the compliance
of the condition in the agreement of disputes being referred
to arbitration, the Court was to stay its 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
Lords. It is not clear and may, however, be assumed that
one of the questions in the appeal was whether the jurisdic-
tion of the Court was ousted if the agreement be a good one.
The
(1) L.R. (1889) 40 Ch.D. 100.
668
House of Lords and the Court of Appeal did not decide that
point as it is noted at p. 101 :
“but their Lordships expressly stated that the
judgment of the House of Lords, and also the
judgment of the Court of Appeal, only decided
that the High Court of Justice had
jurisdiction to try the question of the
validity of the agreement, and did not decide
the question whether the matters in dispute
arising under the agreement ought to be tried
by arbitration.”
One of the parties applied to the -Court to postpone the
trial of the action on the ground that certain points other
than the point regarding 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
mesne, profits could be decreed, as he had raised no
controversy in this 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 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 mesne 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 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-
669
lant had raised the objection that mesne profits could not
be decreed for the period subsequent to March 7, 1941, the
decree holder 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 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
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 provisions 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
judgment debtor 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.165-9
670
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 judgment-debtor is estopped from
raising the contention that he is not liable to pay mesne
profits subsequent to March 7, 1938 in view of his conduct
amounting to his consent in the award of mesne profits
subsequent to March 7, 1938. We have already held that the
appellant’s conduct did not amount to his consenting to
mesne profits being decreed for the period subsequent to
March 7, 1941.
There is no provision of law other than the provision of r.
12, O.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 not disputed for the respondent decree-
holder that r. 12, O.20, does not empower a Court to direct
an inquiry and pass a final decree with respect to mesne
profits for a period exceeding 3 years from the date of the
decree. This is very clear from the language of this rule.
The only question is whether a decree wherein the Court does
not mention the period for which mesne profits would be paid
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 no power to pass a
decree against the clear provisions of r. 12, O.20, and that
therefore the decree should be so construed 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 the decree about the period for which mesne
profits were to be
(1) L.R. 27 1.A. 110.
671
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 paying 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 decree-holder, with
interest thereon at such rate as the 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
claimable up to the time of possession.
Section 211 of the Code 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 event took place earlier. The change of law
therefore restricted the power of 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 dispossession. Possession over the village N was
not recovered till 1892. The trial Court allowed mesne
profits with respect to that village
(1) L.R. I I.A.197.
(2) L.R. 27 I.A. 110.
672
up to the date of delivery of possession. The High Court
did not 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 agree
with the High Court. The Subordinate Judge
gives the plaintiff mesne profits up to the
date of possession. But that is more than
three years from the date of the decree, and
to the extent of the excess is unauthorised by
s. 211 of the Code.”
The principle enunciated in this case about the construction
of the decree for mesne profits for the period of
dispossession was followed subsequently by the various High
Courts on the ground that the Court had no power to award
mesne profits for a period beyond three years from the date
of the decree and that therefore 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 with decrees which either did not specify any
period for the payment of mesne profits or expressly stated
that mesne profits would be payable only until delivery of
possession.
In Venkata Kumara v. Subbayamma(1), Uttamram v. Kishordas (
2 ) and Trailokya v. Jogendra(3) the decree simply mentioned
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 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.
(1) A.I.R. 1953 Mad. 226, (2) I.L.R. 24 Bom. 149.
(3) I.L.R. 35 Col. 1017. (4) L.R. 27 1 A 110.
(5) A.1,R. 1943 Mad. 354. (6) I.L.R. 24 Bom. 345.
(7) I.L.R. [1959] 1 All. 114.(8) I.L.R. 1959 Cal. 76.
673
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 provisions of O.20, r. 12 (1 ) (c), C.P.C. The Court is
deemed to exercise the power in accordance with law 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 delivered 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 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 Chund-
Case(1) on the basis of the decree being vague or incom-
plete. It simply held that the decree for a period in
excess of three years was not authorized by s. 21 1 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 expressed as to cover all the
alternatives mentioned in O 20, r. 12 (1) (c), C.P.C. and to
hold that the decree be construed in accordance with those
provisions.
It is urged for the decree-holde respondent that the trial
Court, when passing the final decree, could not have ignored
what had been decreed under the preliminary decree as no
appeal against the preliminary decree had been preferred and
s. 97, C.P.C., provided 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 decre. The object of s. 97 is that
questions which had been urged by the parties and 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
(1) L.R. 27 I.A. 110.
67 4
decree and would be taken as finally decided if no appeal
had 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 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 which the decree-holder would be entitled to get
mesne profits. No such point can be raised before it. The
judgment debtoes liability to mesne profit’s arose under the
ordinary law and a suit for realizing mesne profits could be
separately filed, by the decreeholder. The provisions of
O.20, r. 12(1)(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 appeal could be filed only after a final
decree is passed decreeing certain amount for mesne profits
to the decree-bolder. It follows that 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 in the suit would be
in a position to know the exact period for which future
mesne profits could be decreed in view of the provisions of
O.20, r. 12(1) (c).
The direction in the preliminary decree cannot operate, in
terms of s. 1 1 C.P.C. or on general principles, as res
judicata for the simple reason, as stated earlier, that the
direction is not based on the decision of any matter in
controversy between the parties and is given in the exercise
of the power vested in the Court under O.20, r. 12 (1 ) (c).
Again, for similar reasons, the principle that a Court can
decide a question within its jurisdiction wrongly as well
67 5
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.
We may now consider the question from another aspect. Rule
12, O.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 of the suit until the actual
delivery of possession of the property to the decree-holder
or until the expiration of three years from the date of the
decree whichever event first occurs. The 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. (1)
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 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 a period longer than 3 years after the date
of the decree, when the decree did not specify the period
for which mesne profits would be allowed or merely stated
that mesne profits would be paid until delivery of
possession. The law did not contemplate such a case and
therefore clearly provided the maximum period for which
mesne profits would be allowed to the decree-holder after
the passing of the decree. Such a case was Kunwar Jagdish
Chandra v. Bulaqi Das(1).
(1) I.L.R. [1959] 1 All. 114.
676
We therefore hold that a decree under r. 12, O.20, C.P.C.
directing enquiry into the mesne profits, however expressed,
must be construed to be a decree directing the enquiry into
the mesne profits in conformity with the requirements of r.
12(1) (c) of O.20 and that the decree-holder in this case
cannot get mesne profits for the period subsequent to March
7, 1941 when the three year period from the date of the High
Court decree expired.
The other question urged for the appellant is that the High
Court was in error in arbitrarily fixing a higher amount of
mesne profits than what had been adjudged by the trial Court
which had itself arbitrarily increased the mesne profits
suggested by the Commissioner. It was urged for the
respondent decree-holder that even if -the High Court had
not given any reason for fixing the rate of mesne profits at
a higher rate than the rate fixed by the trial Court, it
must be presumed that the High Court had fixed the higher
rate after considering the material on record and that
therefore it cannot be said that the High Court had fixed
mesne profits arbitrarily.
It is therefore first necessary to consider whether the High
Court had given good reasons for decreeing mesne profits at
a higher rate than that fixed by the trial Court. We are of
opinion that the High Court had not really come to grips
with the question of proper mesne profits and that it varied
the rates in most cases, without expressing its reasons for
holding that the Subordinate Judge was wrong in his findings
regarding the quantum of mesne profits. This is clear from
certain circumstances. The first is that the High Court
overlooked the period of depression in considering the
quantum of mesne profits.
The Commissioner divided the 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
677
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 been so much and might have
been in the neighbourhood of Rs. 2,000 plus a corresponding
increase in the amount of interest. The High Court appears
to have missed this point as it was considered by the
learned Subordinate Judge practically at the end of his
judgment, at para 25. Below is given the Table showing
reduced rates of profits allowed by the Subordinate Judge
for the period 1931 to 1940:
|—–|————|———- ——–|——————-
| Item of | profit allowed | profit allowed per
Sl | Schedule | per acre by | acre by sub-judge
No | | sub-judge for | for period 1931-40
periods 1926-30 |
& 1941-43 |
——|———– |—————— |——————-
1. |1,4, 8, 12 | Rs. 35 | Rs. 25
|of A-Schdu- | |
|le & C-sche-| |
|dule | |
2. | 9 of A-sch-| Rs.50 (for garden | Rs. 40 (for garden
| edule | produce) | produce)
| |
3. | 10,11, of | Rs. 10 | Rs. 7-8-0
| -do- | |
4. | 18 to 20 | Rs. 30 | Rs. 2
| of -do- | |
5. | Rest of | No change | No change
| items of | |
|A-Schedule | |
| viz,; 2, 3,| |
| 5,6, 7 & | |
| 13 to 17 | |
———————————————————–
The second is that the High Court ordered profits
at a rate higher than what was even claimed by the decree-
holder in regard to item No. 9 of the A-Schedule properties.
The trial Court fixed the annual profits at Rs. 50. The
High Court said :
“We are inclined to think that it is too low.
We enhance the amount to Rs. 100 per year up
to 1940 and to Rs. 150 for the years 1941 to
1943.”
The Commissioner’s report shows that the plaintiff claimed
mesne profits for the mango grove at Rs. 150 per acre up to
1940 and later at Rs. 200 per acre, and thus claimed about
Rs. 94 a year up to 1940 and about Rs. 126 a year for the
later period, the area of the item being .63 cents. The
High Court could not be justified to award the mesne profits
higher than what are claimed by the decree-holder.
The third is that the finding of the High Court is not
consistent with its reasoning with respect to items Nos. 10
and 11 which were pasture lands. The Commissioner
suggested mesne profits at
678
Rs. 10 per acre and said that tax on item No. 10 was at Rs.
6 per acre and on item No. 11 at Rs. 5 per acre. The
Subordinate, Judge fixed mesne profits at Rs. 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 Rs. 20
for the period up to 1940 and Rs. 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 Rs. 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 Rs. 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 Rs. 20 for the items up to 1940
and Rs. 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 for item No. 12, consisting of dry
land, at Rs. 35 per acre. The High Court enhanced the
amount to Rs. 50 per acre, probably thinking that garden
crops could be raised on this land as it said :
“The learned Subordinate Judge stated in
paragraph 18 that garden crops could be grown
on the surrounding lands.”
This is not a very precise summing up of what the
Subordinate Judge had said in para 18 of his judgment. He
stated there that the Commissioner had fixed profits for
this item at Rs. 30 per acre per year as in the case of
other dry lands and that he was fixing profits at Rs. 35 per
acre as he had done so in respect of other dry lands. He
however referred to the observation of the Commissioner :
“He observes that there is evidence to show that on the
surrounding lands, garden crops were being raised and that
there is no reason to hold that no such crops were raised on
this item.”
The Subordinate Judge did not fix the rate on the basis that
garden crops could be raised or were raised on the land of
item No. 12
679
and fixed the rate on the basis that it was dry land. The
Commissioner too does not appear to have fixed the rate on
the basis that garden crops could be raised on this land.
We may now consider how the High Court dealt with the
various items of property in A and C Schedules to show that
the variations made by it in the rates were not based on any
basic material on the record. We refer to them in the order
in which they were dealt with by the High Court.
Schedule A
Items Nos. 13 to 17 : The Subordinate Judge fixed the rent
of these houses at Rs. 4 a month. The High Court raised it
to Rs. 6 per month merely stating :
“We are inclined to think that the rent of Rs. 6 per month
might be fixed in regard to these items.”
The reasons given by the Subordinate Judge for fixing the
monthly rent at Rs. 4 are, in his own words :
“The Commissioner has however fixed the mesne
profits for these items at Rs. 2 per month.
The Union tax itself on this house appears to
be Rs. 6-4-0 per year. The annual tax is
generally equivalent to about 2 month’s rent.
The tax may be taken as a fairly correct basis
for fixing the mesne profits. In that case,
the rate fixed by the Commissioner is too low
and I would fix the profits for these items at
Rs. 4 per month.”
Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the
actual profits for the land comprised in these items at Rs.
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 Rs. 30 per acre, it cannot
be said to be unreasonable or excessive to fix
the profits on these dry lands at Rs. 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 Rs. 30 only. I would however
fix the profits on these dry lands at Rs. 35/-
per acre per year and the petitioner would be
entitled to profits at this rate on items 1
and 4 also from 1926.”
680
The High Court reduced the rate of profits to Rs. 30 per
acre for the period up to 1940 and raised it to Rs. 60 per
year for the period 1941 to 1943 and stated, in this
connection :
“The learned Subordinate Judge increased the
rent from Rs. 30 to Rs. 35 without giving any
reasons. We are inclined to hold that in
respect of all these three items, the rate
ought to have been fixed at Rs. 30 per year up
to 1940. After 1940 there was an increase in
prices. We are inclined to hold that for all
these three items the rate might he fixed at
Rs. 60 per year for the period 1941 to 1943.”
The High Court was in error in noting that the Subordinate
Judge had given no reasons for raising the rate recommended
by the Commissioner. It is really the High Court which gave
no reason for lowering the rate up to 1940 and doubling the
arte from 1941 onwards.
Items Nos. 9, 10, 11 and 12 : We have already dealt with
items 9, 10, 11 and 12 and shown how the High Court had gone
wrong in increasing the rate of profits from them.
Items Nos. 18 to 20 : The Commisisoner recommended profits
at the rate of Rs. 30 a year. The Subordinate Judge agreed
with him and so did the High Court, for the period up to
1940. It however raised the rate to Rs. 60 a year from 1941
onward stating simply :
“But, so far as the years 1941 to 1943 are
concerned, we think it would be reasonable to
fix the rate at Rs. 60 per acre.”
Item Nov. 2, 3, 5, 6 and 7 : The High Court confirmed the
findings of the Subordinate Judge with respect to the
profits for the period up to 1940 but fixed the rate per bag
at Rs. 10 for the period subsequent to 1941 stating :
“However, for the years 1941 to 1943, we fix
the rate per bag at Rs. 10-0-0 as the prices
had increased after 1940.”
Schedule C
The Commissioner allowed profits at Rs. 30 per acre as in
the case of dry lands. The Subordinate Judge fixed profits
at Rs. 35 for the same reason as he bad fixed that rate for
dry lands of items 1, 4 and 8 of Schedule A. The High Court
reduced the
681
rate to Rs. 30/- relying on leases Exhibits P. 10 and P. 1 1
of 1915. It ignored the statement of R.W. 26, considered by
the Subordinate Judge, that rents increased from 1925.
In view of what we have said above, we are unable to say
that the High Court was right in considering the rates of
profits fixed by the Subordinate Judge to be wrong and in
increasing the rate of profits for most of the items of
Schedule A and C and, especially, for the period between
1926 and 1940.
Two courses are now open for us. One is to set aside the
decree for mesne profits and send back the case to the Court
below for deciding it with respect to the quantum of mesne
profits. The 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 determine afresh the quantum of mesne
profits up to March 7, 1941, when the three years from the
decree of the High Court expired and to dispose of the
appeal according to law.
Mudholkar J. This is an appeal from the judgment of the High
Court of Andhra Pradesh which arose out of a suit for pos-
session and mesne profits instituted in the year 1926. The
suit was dismissed by the trial court but on appeal the High
Court of Madras passed a decree therein in favour of the
second plaintiff who is the first respondent before us, on
March 7, 1938. The decree which the High Court passed, in
so far as mesne profits were concerned, was a preliminary
decree and therein the High Court made the following
provision with respect to the claim for mesne profits :
“that the lower court do make an enquiry as to the mesne
profits
682
from the date of the institution of the suit and pass a
final decree for payment of the amount that may be found due
up to the date of delivery of possession to the second
plaintiff.”
No further appeal was taken by the first respondent, who is
the appellant before us, against whom the decree was passed.
Respondent No. 1 obtained delivery of possession of some of
the property with respect to which his claim had succeeded
in the year 1943 and of another item of property on January
1.5, 1948.
On an application preferred by respondent No. 1 a Commis-
sioner was appointed by the court of first instance for
making an enquiry into mesne profits. After considering
that report the court passed final decree for a certain
amount in favour of respondent No. 1. In the course of the
judgment it observed
“So far as the A and C schedule properties are
concerned, there is no dispute about the mesne
profits in regard to their having to be
ascertained for a period of 17 years, i.e.,
from 1926 to 1943 February and for the mesne
profits in regard to the B schedule properties
being ascertained till 1946. The contest is
only in regard to the quantum and not to the
periods mentioned above.”
The appellant preferred an appeal from the final decree
before the High Court of Madras which was eventually
transferred to the High Court of Andhra Pradesh. The
appellant, however, did not raise any ground in his memo of
appeal to the effect that mesne profits could not be awarded
for a period in excess of three years from the passing of
the preliminary decree. He had not raised 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
683
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 new ground raised
by the appellant and decided it against him. Along with the
appeal the High Court dealt with the cross-objection
preferred by the first respondent in which he claimed
enhancement of the amount of mesne profits. The High Court
dismissed the appellant’s appeal and partially allowed the
cross-objection preferred by the first respondent and
modified the final decree passed by the court. Eventually
the High Court granted a certificate to the appellant and
that is how the matter has come up before us.
Two points were urged on behalf of the appellant before this
Court. The first is that respondent No. 1 was not entitled
to be granted mesne profits for a period beyond three years
from the passing of the preliminary decree and the other is
that the High Court was in error in enhancing the amount of
mesne profits. Along with this appeal we have also heard an
appeal preferred by the respondent which is C.A. 926 of 1963
in which he claimed a further enhancement of the amount of
mesne profits.
I have had the advantage of reading the judgment of my
learned brother Raghubar Dayal in which he has held that the
High Court was in error in refusing leave to the appellant
to raise a new ground at the stage of argument and after
allowing it to be raised has upheld it. In regard to the
second ground he has observed that the High Court was not
right in raising the amount of mesne profits and has
expressed the opinion that the matter be remanded to the
High Court for fresh decision on the point. He has also
expressed the view that the cross-appeal preferred by the
respondent should be dismissed.
I am clearly of the opinion that the High Court was right in
refusing leave to the appellant to raise a new ground at the
hearing since not only had he not raised it in the memo of
appeal but he had also allowed an enquiry into mesne profits
by the Commissioner to be made, for a period longer than
three years from the date of the decree and participated
therein. The reason why a new ground ought not to be
allowed to be raised at the hearing of an appeal has been so
well stated by Lord Birkenhead in Wilson v. United Counties
Bank Ltd.(1) that I need do no more than reproduce what he
has said:
(1) [1920] A.C. 102,106.
684
“The object of indicating in detail the
grounds of appeal, both to the Court of Appeal
and to your Lordships’ House, is that the
respondent parties may be accurately and
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 had to be paid. Before the
appeal was taken up, the appellant sought to
raise an additional ground of appeal viz.,
that the Subordinate Judge was not entitled to
grant mesne profits for more than 3 years from
the date of the High Court’s decree. This
question was not raised in the counter
affidavit in I.A. No. 558 of 1945 on the file
of the Subordinate Judge, Eluru or before the
Commissioner ,or before the Subordinate Judge.
On the other hand, it was conceded before the
Commissioner as also the Subordinate Judge
that accounts can be taken up to 1943 in
respect of A and C schedule properties and up
to 1946 in respect of B schedule properties.
It is for the first time that this objection
based on provisions of Order XX Rule 12 C.P.C.
is raised before this Court. If the objection
had been raised in the counter or before the
Commissioner, it would have been open to the
2nd plaintiff to file a suit for recovery of
the mesne profits beyond the 3 years up to the
date of delivery of possession. As the
685
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.”
We would be going against all precedents as for instance the
decision of the Privy Council in Rehmat-un-Nisa Begum v.
Price() and our recent judgment in lttyavira Mathai v.
Varkey Yarkey(2) if we say that despite what the High Court
did, we shall go into the question ourselves. In that case
we have observed in col. 2 page 911 :
“It would thus be clear that the appellant has
not raised a sufficiently clear plea of
limitation by stating relevant facts and
making appropriate averments. It is
apparently because of this that the trial
court, though it did raise a formal issue of
limitation, gave no finding thereon. Nothing
would have been simpler for the trial court
than to dismiss the suit on the ground of
limitation if the plea was seriously raised
before it. Had the point been pressed, it
would not have been required to discuss in
detail the various questions of fact
pertaining to the merits of the case before it
could dismiss the suit. In the plaint the
respondents claimed that the period of
limitation for the suit commenced on 15-2-1113
when the High Court dismissed the revision
petition preferred by the respondents. The
appellant has not stated 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
(1) 45 I.A. 61.
(2) A.I.R. 1964 S.C. 907.
L4Sup./65
686
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 on the ground that the suit was
barred by time. In the circumstances, we
decline leave to the appellant to raise the
point of limitation before us.”
We refused permission to the appellant to raise a new ground
for two independent reasons. One was that the appellant had
not raised a sufficiently clear plea in his written
statement. The other was that the question was a mixed one
of fact and law.
I am aware that in Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari(1) this Court has quoted with approval at
pp. 861-2 the following passage from the decision in
Connecticut Fire Insurance Co. v. Kayanagh (2) :
“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 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.”
But there a question of limitation had in fact been raised
in the court below and what was sought by the appellant was
leave to press in aid s. 18 of the Limitation Act. It was
in this connection that the observations quoted earlier were
referred by this Court. Moreover, since this Court
negatived the plea based on s. 18 on the ground that the
necessary facts were not established the approval of Lord
Watson’s view could at best be said to be a mere obiter.
We must also not lose sight of the principle that where a
party omits to raise an objection to a direction given by
the lower court in its judgment he must be deemed to have
waived his right and he cannot, for the first time at the
hearing of an appeal from the decision of that court
challenge its power to make the direction. In London Chatham
and Dover Railway Co. v. South Eastern Railway Co. (s) all
the Lords Justices of the Court of Appeal have
(1) [1950] S.C.R. 852.
(2) [1892] A.C. 473.
(3) [1889] 40 Ch. D. 100, 106-109.
687
emphatically said that an omission of a kind of which the
appellant in this case is guilty must be treated as a waiver
even of a plea of jurisdiction. In that case there was an
agreement between the parties, two railway companies, which
provided for a reference of all matters of difference
between them to arbitration under the Railway Companies
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 trial of the action till it was
finally decided. The trial then proceeded and judgment was
given on the basis of the evidence. When the matter went to
the Court of Appeal the defendant contended that the Court
had no jurisdiction to go into the merits of the case.
Negativing it, Cotton L. J. said :
“…….. the defendants did not say, ‘While the decision in
the House of Lords is pending we cannot contend that this
point ought to go to an arbitrator, but we do not abandon
it, we still desire to keep it open;’ but they go on with
the trial and they get the judgment of a Court upon the
evidence on the question which they now say the Court ought
never to have entertained. In my opinion parties ought not
to be allowed to do that. 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
688
had insisted on it in a proper way and at a proper time.”
(p. 105).
Lindley L. J., observed:
“Having regard to the course which was adopted in the Court
below, I think the Defendants must be treated as having
waived this objection in the Court below, and it would not
be right for us to entertain it on appeal.” (p. 107).
Bowen L. J., agreeing with the other Lords Justices said
“I agree with the Lord Justice that here, if the point had
been taken and insisted upon from the first, there might
have been no answer to it; but, at all events, when the
point is not taken from the first, it is to be treated as
having been abandoned in that way; and when a point such as
this is waived and not insisted upon, the Court is not
compelled at any stage of the litigation to go back and
treat the parties who have waived it as parties who have not
done so.”
This is not an isolated decision, nor indeed does it lay
down a novel rule of practice. It is right and proper that
parties to a litigation should not be permitted to set up
the grounds of their claims or defence in driblets or at
different stages and embarrass the opponents.
Considerations of public policy require that a successful
party should not, at the appellate stage, be faced with new
grounds of attack after having repulsed the original ones.
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 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
689
enquiry as to mesne profits from the date of institution of
the suit until (i) the delivery of possession to the decree-
holder; (ii) the relinquishment of possession by the
judgment-debtor and notice to the decree-holder through the
Court or (iii) the expiration of three years from the date
of the decree, whichever event occurs first. Therefore,
when the Madras High Court passed a preliminary decree on
March 7, 1938 it ought to have given directions with regard
to the determination of mesne profits in the manner provided
for in cl. (c) of r. 12(1) of O.XX, C.P.C. The High Court
however, chose to make only a single direction and that is
that mesne profits be determined up to the date of the
delivery of possession and nothing more. It may be that the
High Court did not expect that the delivery of possession
would be delayed beyond three years of the passing of the
decree or that the High Court overlooked the possibility of
possession being delivered more than three years after its
decree. Therefore, it does not necessarily follow that the
failure of the High Court to make it clear that in any case
the determination of mesne profits shall not be for a period
in excess of three years from the date of preliminary decree
was an error. Even assuming that the direction in the
preliminary decree that mesne profits shall be determined
and consequently will be payable right up to the date of
delivery of possession, whenever the event occurred, was
wrong, that decision has to be given effect to. This
decree, as already pointed out, was not challenged by taking
a further appeal and has, as between the parties, become
final by the operation of the provisions of s. 97 of the
Code of Civil Procedure which says :
“Where any party aggrieved by a preliminary
decree passed after the commencement of this
Code does not appeal from such decree, he
shall be precluded from disputing its
correctness in any appeal which may be
preferred from the final decree.”
The appeal before us is an appeal from the final decree and,
therefore, the appellant is precluded from making a
challenge to a direction in the preliminary decree. I am
fortified in this view not only by what we have said in
Ittyavita Mathai’s case(1) in para 8 at p. 910 but also by
the recent judgment of this Court in Smt. Gvarsi Bai & Ors.
v. Dhansukh Lal & Ors. (7 There, Subba Rao J., speaking for
the unanimous Court has observed
“In a case where a decree is made in Form No.
5A, it is the duty of the Court to ascertain
the amount due to
(1) A.I.R. 1964 S.C. 907.
(2) [1965] 2 S.C.R.
690
the 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
preliminary decree; if these were not given
credit to the mortgagor and a larger amount
was declared by the preliminary decree as due
to the mortgagee, can the mortgagor, after the
preliminary decree, reopen the question ?
Decidedly he cannot. This is because the
preliminary decree had become final in respect
of the disputes that should have been raised
before the preliminary decree was made.”
That the general principles of res judicata would apply to
such a case as this was held long ago in Ram Kirpal Shukul
v. Mussumat Rup Kuari(1) and the view taken therein has been
followed by this Court in Gulabchand Chhotalal Parikh v.
The State of Bombay (now Gujarat) (2).
It is, however, contended that what the appellant seeks in
this ,appeal from the final decree is merely an
interpretation of a direction in the preliminary decree and
that that direction should be construed in such a way as to
make it a decree according to law i.e., in accordance with
the provisions of O. XX, r. 12, C.P.C. The question of
construction of a decree can only arise where the decree is
ambiguous. A number of cases were relied upon before
(1) 11 I.A. 37. (2) [1965] 2 S.C.R. 546.
691
us on behalf of the appellant and some of them have been
discussed in the judgement of my learned brother as also in
the judgement of the full Bench in Kudapa Subbanna v.
Chitturi Subbanna & ors.(1). That decision is subject of
the appeal preferred respondent No. 1 in C.A. No. 926 of
1963. It may be conceded that where the meaning of a term
of a decree is not clear Or is ambiguous the question of
construing that term would arise. In such a case the court
whose duty it is to construe it would be doing the right
thing in placing upon it a construction which will make it
conformable to the law. The direction in question contained
in the preliminary decree of the High Court does not, in my
opinion, suffer from vagueness, ambiguity or such
incompleteness as will make its enforcement impossible. It
may be that the High Court in making the direction wrongly
thought that it had discretion to specify any of the three
events set out in cl. (1) (c) of
r. 12 of O. XX or that it expected that possession would
be delivered by the appellant to the respondent before
the expiry of three years. Or it may be that the High Court
had overlooked the limitations cl. (c) of O. XX, r. 12(1).
But whether it was one or the other, does not render 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 the direction made by the High
Court. Even assuming that one of the terms of a decree is
erroneous in law the decree is nonetheless binding upon the
parties until and unless it is corrected in appeal or other
appropriate proceeding. Such a decree
(1) Appeal No. 368 of 1956 decided on 23-2-1962.
692
cannot be treated as one which was passed without
jurisdiction. For, it is well settled that while it is the
duty of a court to decide right it may well happen that it
decides wrong. Whichever way it decides, it acts within its
jurisdiction and not beyond it, as was observed by the Privy
Council in Malkarjun v. Narhari(1) which was followed by
this Court in Ittyavira Mathai’s case(2). A wrong decision
is no doubt vulnerable but it does not automatically become
unenforceable. Unless corrected in the manner provided for
in the Code it will operate as res judicata between the
parties in all subsequent stages of the lis.
I have not thought it necessary to discuss the various
decisions cited at the Bar and noted by my learned brother
because the decrees construed in them were found to be vague
or incomplete. To my mind it would not be right for a court
to characterise a term of a decree which upon its face
appears to be clear and complete, as being vague or
incomplete merely because in its view that term is erroneous
and then proceed to interpret it. So far as a Court whose
duty it is to give effect to a decree of a Court of
competent jurisdiction is concerned it is immaterial whether
the term or direction as it stands is contrary to law. So
long as it is, on its face, complete and capable of
enforcement it has no power to go behind. For these reasons
I am of opinion that the first contention raised on behalf
of the appellant must fail.
As regards the question of quantum of mesne profits I agree
with my learned brother that the High Court has given no
good reasons for enhancing the amount. In dealing with
various items it seems to have proceeded on assumptions or
raised the rates of profits to be allowed without referring
to the basis for the enhancement. In the circumstances I
would agree to the course proposed by him.
The appeal, therefore, succeeds only partially and in the
circumstances the appropriate order for costs would be for
each party to bear its costs in this Court.
Appeal allowed.
(1) 27 I.A. 216. (2) A.I.R. 1964
S.C. 907.
693