Pushpawatibai (Deceased) And After Her... vs Ratansi And Anr. on 6 December, 1962

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 6 December 1962

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In the case titled Pushpawatibai (Deceased) and After Her … versus Ratansi and Anr., decided on 6 December 1962, the matter was heard by the Supreme Court of India. The opinion was written by Justice P. B. Gajendragadkar, who was a member of the bench together with Justices K. N. Wanchoo, K. C. Das Gupta and J. C. Shah.

The petition was filed under special leave and centred on a single, concise question: whether the Division Bench of the High Court of Nagpur had correctly held that the respondents’ application for mesne profits against the appellants was legally valid. The learned single judge of the High Court, who had originally heard the dispute, had rejected the respondents’ claim on the ground that it was incompetent in law. That decision was appealed in a Letters Patent Appeal, where the higher court reversed the earlier conclusion and remitted the case to the executing court for determination of the mesne profits that might be awarded to the respondents.

The factual background began on 22 August 1909 when Rustamrao instituted a suit (Civil Suit No. 26 of 1909) against Dinkarrao Rajurkar and other parties for partition of joint‑family property. Dinkarrao Rajurkar, who later died, was the husband of the first appellant and the father of appellants 2‑5. After the decree in that suit was executed, a plot of land together with other assets was allotted to Dinkarrao’s share. When Dinkarrao attempted to take possession of the allotted plot, the respondents obstructed him. An order dated 28 August 1930 directed the respondents to remove the obstruction and to surrender possession to Dinkarrao, and on 29 September 1930 Dinkarrao was placed in possession.

Subsequently the respondents filed a suit under Order 21, Rule 103 of the Code of Civil Procedure (Civil Suit No. 113 of 1931), later renumbered as 36‑A/1937. That suit was finally decreed on 29 April 1940, holding that the respondents were entitled to possession of the plot and the buildings on it as of the date of their dispossession by the 28 August 1930 order, and directing Dinkarrao to deliver possession to them.

Dinkarrao appealed the decree by filing First Appeal No. 54 of 1940 in the High Court. While the appeal was pending, he sought a stay of execution of the decree for possession. The High Court granted a stay on 28 June 1940, on the condition that the appellant provide adequate security for costs and for mesne profits accruing from the date of the decree until possession was delivered, in the event that his appeal failed. Dinkarrao furnished the required security and the execution of the decree was consequently stayed.

The appeal was decided on 10 December 1946, when the High Court dismissed it on the merits and confirmed the trial‑court decree in favour of the respondents. Following that judgment, Dinkarrao applied to the High Court for a certificate of appeal to the Privy Council and renewed his request that execution of the decree remain stayed until the Privy Council disposed of his appeal. That application was denied, and the appeal eventually came before this Court, where it was dismissed.

After the High Court dismissed the appeal on the merits, the appellant sought a certificate to appeal to the Privy Council and renewed a request that execution of the decree be stayed until the Privy Council had considered the appeal. The High Court denied this application. The appeal was subsequently heard by this Court, which also dismissed it. On 8 April 1947 the respondents filed an application under Order 21, Rule 11(2) of the Code of Civil Procedure seeking execution of the decree issued in Civil Suit No. 36‑A/1937. In that application the respondents asked for delivery of possession of the property specified in the decree and also claimed mesne profits, alleging that the judgment‑debtor, Dinkarrao, had collected rent from 29 April 1940 up to the date possession would be delivered. Dinkarrao opposed the claim for mesne profits. While these proceedings were pending, Dinkarrao died on 1 November 1949. His legal representatives were entered on the record on 9 January 1951, and they renewed Dinkarrao’s plea that the claim for mesne profits was legally incompetent. The executing court accepted this plea and rejected the respondents’ claim for mesne profits. On appeal that decision was reversed; the claim for mesne profits was allowed, and the decree issued by the Letters Patent Bench on that basis was brought before this Court by special leave.

The sole argument advanced by counsel for the appellants was that the respondents’ procedure in claiming mesne profits was not authorized by law. Counsel acknowledged that the stay order granted by the High Court required Dinkarrao to furnish security not only for costs but also for mesne profits, and that this requirement gave the respondents a right to claim mesne profits and imposed a corresponding liability on the appellants to pay such profits from the date of the decree until possession was delivered. The contention was that the claim for mesne profits could be enforced either by a separate suit or by an application properly made to execute the stay order itself. Counsel further submitted that the present application was made to execute the decree that had been passed on appeal on 10 December 1946, and because that decree did not award mesne profits, the respondents lacked competence to claim mesne profits through execution of that decree. In our view this argument is purely technical and was rightly rejected by the Letters Patent Bench. Although the execution application sought to enforce the decree issued in Appeal No. 54 of 1940, the record shows that after the judgment‑debtor objected, the respondents filed a detailed explanation. In that explanation they reproduced the High Court stay order and made clear that their claim for mesne profits was based on that order. Consequently, the respondents were, in substance, claiming mesne profits by virtue of the High Court stay order, not by virtue of the decree itself.

In this case, the respondents sought mesne profits by relying on the order that the High Court had passed when it granted a stay to Dinkarrao. The appellants raised only a single technical objection. Their objection was that, in order to enforce the High Court’s stay order, a separate application for execution should have been filed, and that application should have been accompanied by the appropriate court‑fees stamp. The appellants further contended that because the prayer for mesne profits was included in the same application that was intended to execute the decree itself, that prayer was incompetent and could not be considered. The Court examined the explanation that the respondents had filed. That explanation made clear that the respondents were asking the Court to execute the decree with respect to possession of the property, and at the same time they were asking for mesne profits on the basis of the stay order issued by the High Court. Consequently, the Court concluded that the execution application filed by the respondents could be viewed as a composite application, that is, an application that simultaneously sought execution of the decree and enforcement of the stay order for mesne profits. This view corresponded with the approach that the High Court had adopted in the earlier proceedings. Having found no fault with that combined approach, the Court saw no reason to disturb the High Court’s decision. Accordingly, the appeal was dismissed and the appellants were ordered to bear costs.