Judgement

NARASIMHAM, J.: -

This is an appeal preferred under the Letters Patent against the Judgment of our learned brother Srinivasachari, J. in S.A. 778 of 1556, affirming the judgment of the lower appellate court, and raises the question as to the right of an assignee of the decree-holder, whose assignment has not been recognised by the executing court, as against the right of an attaching creditor of the decree-holder-assignor.

2. The facts involving this question are these: The appellant herein is the assignee of the decree-holder, the second respondent in this appeal. The second respondent Mohd. Ismail will hereinafter be referred to as the decree-holder. A decree was passed in his favour in O.S.95/51 on the file of the sub court, Tenali for Rs.2600/- realizaple with interest thereon, and a charge was created against certain immovable properties for the realisation of the said amount. The decree-holder then transferred the decree by an assignment deed D/-27-8-52, Ex. A.2 in favour of the present appellant. After the assignment, the appellant (who will be referred to as the assignee) did not apply to the court for recognition of the assignment, and execution of the decree under the provisions of O.21, R.16 C.P.C.

3. While so, the first respondent (herein referred to as the attaching creditor) obtained a money decree against the decree-holder in SC 355 of 1952 on the file of the district Munsiffs Court, Tenali and attached the decree in O.S.95 of 1951 in favour of the Decree-holder on 11-10-52. He then executed the decree. The charged property was sold in execution and purchased by the third respondent (who will be referred to as the auction purchaser).

4. Before the sale of the charged property in O.S.95 of 51, the assignee preferred a claim in C.A. 225 of 1954. That claim was dismissed, whereupon he preferred a claim suit, O.S.201/54 in the court of the Dist. Munsif, Tenali, to set aside the adverse order passed on the claim petition.

5. It would appear that it was conceded that the assignment was true and supported by consideration.

6. The District Munsif, Tenali, who tried the claim suit, O.S.201 of 1954, found that unless the assignee applied to the court for recognition and execution of the decree under the provisions of O.21, Rule 16, he would have no right to question the attachment and sale of the property and, in that view, dismissed the suit.

7. The learned subordinate Judge, Tenali in the appeal preferred by the assignee, agreed with that view and dismissed the appeal.

8. The second appeal preferred to this court was also dismissed by our learned brother Srinivasachari, J., agreeing with the view of the courts below. But, he granted leave. The matter is before us in Letters Patent Appeal.

9. The short question, as we have indicated, is the right of an assignee of the decree-holder, who has not applied to the court for recognition of the assignment and for execution of the decree vis-a-vis the right of an attaching creditor.

10. Sri Suryanarayana Murthy for the appellant-assignee argued for the position that when there is an assignment, the property which is the subject-matter of the assignment, passed to the assignee, and that any attachment effected thereafter, would not confer any rights on the attaching creditor. His contention is that O.21, R.16, C.P.C. is a rule of procedure and would not interfere with the substantive rights of the parties. Be it noted that in the present case the attachment (D/-11-10-52) by the creditor was subsequent to the assignment (D/-27-8-52). For this proposition, he has relied on Sadagopachariar v. Raghunathachariar, ILR 33 Mad 62 which was followed by a Division Bench of the Rangoon High Court in Co-operative Town Bank of Padigon v. Raman Chettiyar, ILR 5 Rang 595 : (AIR 1928 Rang 25).

11. The Madras decision pertains to a suit by the assignee to recover the original debt repudiating the assignment. It would appear that subsequent to the assignment D/-28-1-1904, the decrees were attached by a creditor of the decree-holder assignor. The assignee did not apply for the execution of the decree till 1905. One of his applications for execution was dismissed on 27-3-1905 on the ground that the decree had been attached. Another application was dismissed as not pressed.

12. On 27-7-1905, the assignee repudiated the assignment and brought a suit to recover his debts which formed the consideration for the assignment of the decrees.

13. The learned Judges discussed about the maintainability of the suit, and held that the suit was not maintainable in the view that unless the assignee had at least preferred a claim to the attaching court and that had been rejected, the assignee was not entitled to treat the assignment as ineffectual. In the course of the judgment, there is reference to an earlier Madras decision in Puthiandi Mammed v. Avalil Moidin, ILR 20 Mad 157, where it was held by a Division Bench that by an assignment of a decree there was no complete transfer until it was recognised by the Court. It would appear to have been contended on the strength of that decision that the property in the decree had not passed prior to the attachment, because there was no such recognition. The learned Judges expressed therein their disagreement with that view and went on to say that as they could read the relevant provision the completion of the transfer did not depend upon any recognition by the court. The ultimate decision in the case was undoubtedly, adverse to the assignee, on the ground that he had not preferred a claim to the attaching court.

14. But, these observations are canvassed for the proposition that the property in the decree had passed to the assignee on the assignment, that no further recognisition by the Court was necessary, and if that was the correct position, the property attached subsequent to the assignment cannot be proceeded against by the attaching creditor as the property of assignor-decree-holder.

15. The Rangoon case presented similar facts. That was a case where an attaching creditor executed the decree and realised Rs.2700/-. There was an assignment of the decree prior to the attachment in favour of a co-operative town Bank of Padigon. The assignee claimed to recover the amount realised by the attaching creditor. The learned Judges took the view that such a suit for recovery of the money was maintainable. In the course of the Judgment, the learned Judges referred to ILR 20 Mad 157 and in the view that this decision was dissented from by their Lordships in the case of ILR 33 Mad 62 they agreed with the view taken by the latter bench. The opinion expressed in Sadagopachariar v. Raghunath Chariar and others ILR 33 Mad 62 appears to have been followed in Nichalsing v. Vishenji Goverdandas, AIR 1928 Sindh 71.

16. In Pearey Lal v. Allahabad Bank Ltd., Meerut, AIR 1926 All 244, a single Judge expressed the opinion that in a case where there is an assignment prior to the attachment, an enquiry fell within the provisions of O.21, R.58 C.P.C., and that the order thereon was final, subject to the result of the suit.

17. Chillaloor Veera Musala Reddi v. P. Ramiaya, 5 Ind Cas 1010 (Mad), is another case where it was indicated that the remedy open to an assignee of a decree, which was attached by a creditor of the assignor, was to prefer a claim to the attaching court. The two latter rulings do not refer to the conflict of views in ILR 20 Mad 157 and ILR 33 Mad 62. They seem to indicate only a remedy of an assignee. As it is, there appears to be some difference in view between ILR 20 Mad 157 and ILR 33 Mad 62, both of which are Division Bench decisions expressing divergent views.

18. The learned counsel for the respondents, Sri Surya Rao argued for the position that the assignee has to apply for recognition and execution under O.21, R.16 C.P.C. before he could question the attachment effected by an attaching creditor and that the view expressed in ILR 20 Mad 157 has been consistently adopted in subsequent cases decided in Madras and other High Courts.

19. He has further argued that it is not for the executing court to embark on enquiries as to the right to execute, but must allow the execution to proceed on the basis of the decree-holder on record. This proposition is supported by Peda Yelligadu v. Venkata Kumara Mahipathi Surya Rao 29 Mad LJ 693 : (AIR 1915 Mad 914) and Ari Chetty v. Theerthamalai Chetty, AIR 1917 Mad 691 (2) and Hari Krishnamurthi v. Suryanarayanamurthi, 38 Mad LJ 271 : (AIR 1920 Mad 135).

20. Jayanarayana v. Polayya, 68 Mad LJ 392 : (AIR 1935 Mad 383) Considered the earlier decisions with regard to the position of an original decree-holder vis-a-vis to assignee of the decree debt, who had not taken steps to get himself recognised as the transferee decree-holder and ruled that: (at p.394) (of Mad LJ) : (at p.384 of AIR):

"The only person in whose favour the decree was on the face of it, was the original decree-holder and the executing court was bound to regard him as the person entitled to execute the decree and could regard no other person as such."

The prior decisions have been reviewed exhaustively by the Division Bench.

21. This ruling was followed in Rangayya Setti v. Venkata Subba Reddi AIR 1937 Mad 605.

22. In Venkatachellam v. Subrahmanyam, 1941-2 Mad LJ 219 : (AIR 1941 Mad 795) Patanjali Sastri, J. referred to ILR 33 Mad 62 and expressed that

"a transfer of decree by an instrument in writing takes effect from the date of such transfer and the transferee is entitled to apply for executing the decree under O.21, R.16 of the Code. The court, before ordering execution has, no doubt, to issue notice of such application to the transferor and the Judgment debtor and hear their objections, if any."

23. It is seen, therefore, that there is consistent authority for the position that an assignee has to apply to the court under O.21 R.16, C.P.C. and get his assignment recognised before he could execute the decree.

24. It would appear, that this view is also shared by other High Courts as well. Reference is made to Umrao Singh v. Pahlad Singh, AIR 1935 All 1001, where the learned Judges, have observed (at p.1001) thus:

"On the face of the decree, Pahlad Singh is the person entitled to execute it. Private transactions outside the Court cannot be recognised by the execution court when the alleged assignee has not come forward to claim such rights and get her name substituted. If this were allowed the result would be that an execution court would be compelled to go behind the decree in many cases and start an investigation as to the way in which interest has devolved on other persons not before it. It is significant that under Order 21, R.10 C.P.C. when the holder of a decree desires to execute it, he shall apply to the court which passed the decree whereas with reference to transferees, O.21, R.16 merely says that where the interest of any decree-holder in a decree is transferred by assignment, the transferee may apply for execution of the decree to the court which passed it. There is nothing in the provisions of O.21, which debars the original decree-holder whose name appears on the face of the record, from executing the decree merely because there has been some assignment out of Court which has not yet been recognised by the execution Court"

.

To the same effect is Anath Nath v. Monmotha Nath, AIR 1939 Cal 482.

25. Mohd. Ishrat Ali v. Sayed Raza, AIR 1945 Oudh 225 propounded the same view. It was observed in the course of the discussion with reference to the case-law, that: (at P.226).

"there is a long string of cases which lay down that so long as a transferees right to execute a decree is not recognised by the court, it is the original decree-holder who can make an application for execution."

A recent ruling of our High Court in Balasubramanya Reddy v. Munuswami Reddy, AIR 1960 Andh Pra 305 has also adopted this view.

26. We consider that the consensus of judicial authority supports the view that an assignee-decree holder cannot arrest or impede execution of the decree till he applies for and obtains recognition of the assignment in his favour by the court.

27. A careful study of the relevant provisions would lead us to the same conclusion. Law permits the assignment of a decree. By reason of the assignment, the assignee could apply for the execution of the decree under O.21 R.16 C.P.C. Till he applies to the court and obtains recognition, obviously, the court has no power to go behind the decree and enter into questions beyond the scope of the decree. There is a principle involved viz. that of sanctity of decrees. Further, Order 21, Rule 53, sub-rule (3) is in these terms:-

"The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the respresentative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof."

The attaching Decree-holder, thus, steps into the shoes of the original decree-holder and could execute the decree.

28. This result which is independently achieved and which is also borne out by consensus of judicial authority does not conflict or affect any substantive rights. O.21, R.16 regulates the procedure and does not affect substantive rights. It is perfectly consistent with the hypothesis that a transfer as between the assignor and the assignee might operate as an assignment, but so far as the execution of the decree is concerned, the assignee has to conform to the procedure prescribed to enforce the right that he had obtained by the assignment.

29. An assignee cannot merely rest on his assignment without resorting to the procedure for the enforcement thereof.

30. Salmond has lucidly brought out the distinction is his jurisprudence (11th Edn. 1957 at page 504, in Chapter 22) thus,

"Whether I have a right to recover certain property is a question of substantive law, for their determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to modes in which the courts fulfil their functions."

The executing Courts are, by law, bound to execute decrees as they stand and without going behind the decrees. An instance in point is under O.21, R.2(3), where it is expressly stated that a payment or adjustment which has not been certified or recorded (as aforesaid), shall not be recognised by any court executing the decree.

31. These and other rules of the kind are meant to safeguard the sanctity of decrees.

32. On a review of the several aspects bearing on this question we have no hesitation in expressing our view that the assignee, without applying under O.21, R.16 cannot question the attachment of the property in question and the sale thereof.

33. In this view, the courts below and our learned brother Srinivasachari, J. are right in dismissing the appellants suit.

34. Sri Suryanarayana Murthy has urged that as a last plea, he might be permitted to treat the suit as an application under O.21, R.16.

35. We do not consider that this could be permitted as different considerations would prevail with regard to an application under O.21, R.16, which contemplates an application for execution of the decree to the court which passed it.

36. We, therefore, affirm the decision of our learned brother Srinivasachari, J.

37. The Letters Patent Appeal fails and is dismissed with costs of R.1.

Appeal dismissed. AIR 1962 ANDHRA PRADESH 500 (V 49, C 129) "Subbanna v. Subbanna"

ANDHRA PRADESH HIGH COURT

FULL BENCH

Coram : 5 P. CHANDRA REDDY, C. J., JAGANMOHAN REDDY AND SANJEEVA ROW NAYUDU, JJ. AND (DIVISION BENCH) P. CHANDRA REDDY, C. J. AND ANANTANARAYANA AYYAR, J. ( Full Bench )

Kudapa Subbanna, Appellant, (Pltf.) v. Chitturi Subbanna and others, Respondents.

Appeal No.368 of 1956 with Cross-objection, D/- 23 -2 -1962.

(A) Civil P.C. (5 of 1908), O.20, R.12(c)(iii) - DECREE - POSSESSION - Mesne profits - Decree for - Mesne profits cannot be allowed for more than three years from date of decree.

AIR 1959 Andh-Pra. 607, Overruled.

Per Full Bench: A decree providing for the ascertainment of mesne profits until delivery of possession of property should be so construed as to harmonise with the provisions of Order XX Rule 12 (c) (iii). It is not competent for a Court to allow profits for a longer period by reason of Order XX Rule 12 C.P.C. The Court should construe such a decree as providing for the determination of the mesne profits until the recovery of possession but for not more than three years from the date of the decree. Hence, the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree in spite of the provision in the decree directing enquiry as to mesne profits fill recovery of possession of the property by the decree-holder. AIR 1959 Andh-Pra. 64, Expl.; AIR 1955 Trav-Co. 233, Disting.; Case law Rel. on; AIR 1959 Andh Pra 607 Overruled. (Paras 24, 25)

(B) Civil P.C. (5 of 1908), S.100 - APPEAL - PLEA - WAIVER - WORDS AND PHRASES - Plea in defence - Waiver of - Meaning of waiver - Held defendant did not give up his plea or waive his objection.

Per Division Bench: Waiver means an intentional relinquishment of a known right. It implies being conscious of ones right and giving it up.

Held that the defendant did not give up his plea or waive his objection to the award of mesne profits for a period for which mesne profits could not be lawfully given under O.20 R.12, C.P.C. (1888) 40 Ch D 100; and AIR 1950 Mad 284, Dist. (Para 38)

(C) Civil P.C. (5 of 1908), O.20, R.12(c)(iii) and S.38 - DECREE - EXECUTION - Decree passed without jurisdiction - It is Guilty - Its validity can be questioned even at stage of execution.

Per Division Bench: A decree passed by a Court without jurisdiction is a nullity. Its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Thus, a plea that the decree for mesne profits passed by the lower Court is one that contravenes the provision in O.20 R.12(c) (iii) and is, therefore invalid can be raised in an appeal even when it is not raised in the lower Court. AIR 1954 SC 340, Fell. (Para 41)

(D) Civil P.C. (5 of 1908), O.41, R.22 - APPEAL - OBJECT OF AN ACT - scope - Crass objections which can be taken by respondent - Extent of.

Per Division Bench: The second part of O.41, R.22 gives the respondent a right to file a cross-objection which he could have taken by way of appeal. If an appeal is filed the respondent to the appeal, without filing any appeal, can take cross-objection to the decree on any ground on which he could have filed an appeal. AIR 1950 Cal 372, Foll.; AIR 1918 Cal 227, Expl.; AIR 1950 Bom 161, Disting. (Para 45)

Cases Referred : Courtwise Chronological Paras

(54) AIR 1954 SC 340 (V 41) : 1954 SCJ 514 Kiran Singh v. Chaman Paswan 41

(1900) ILR 27 Cal 951 : 27 Ind App 110 (PC), Grish Chunder Lahiri v. Shoshi Shikhareswar Roy 8, 15

(01) ILR 23 All 152 : 27 Ind App 209 (PC), Bhup Indar Bahadur v. Bijay Bahadur 12

(59) AIR 1959 All 242 (V 46) : ILR (959) 1 All 114, Jagdish Chandra v. Balaqi Das 16

(59) AIR 1959 AP 64 (V 46) : 1958 Andh LT 19, Narayana Dossjee v. Board of Trustees Trupati Devasthanams 21

(59) AIR 1959 AP 607 (V 46) : 1959 Andh LT 207, Chittoui Subbanna v. Kudapa Subbanna 20, 23, 25, 30, 33, 36

(1900) ILR 24 Bom 345 : 1 Bom LR 846, Narayan Govind v. Sono Sadashiva 11

(50) AIR 1950 Bom 161 (V 37) : 52 Bom LR 97, Rammohan Rai v. Somabhai 44

(59) AIR 1959 Bom 536 (V 46) : ILR (1959) Bom 871, Bhagwant Vinayak v. Radhakishan 17

(92) ILR 19 Cal 132 (FB), Puran Chand v. Roy Radha Kishen 11

(08) ILR 35 Cal 1017, Trailokya Nath v. Jogendra Nath 12

(18) AIR 1918 Cal 227 (V 5) : 38 Ind Cas 536, Pran Krishna Das v. Protap Chandra 43

(50) AIR 1950 Cal 372 (V 37), Ramasray Singh v. Bibhisan Sinha 45

(15) AIR 1915 Mad 226 (V 2) : 1 Mad LW 443, Venkata Kumara v. Subbayamma 13, 30

(43) AIR 1943 Mad 354 (V 30) : 1943-1 Mad LJ 253, Godavarti Raia v. Ramachandraswami 15, 16

(50) AIR 1950 Mad 284 (V 37) : 1949-2 Mad LJ 694, Raja Chetty v. Jagannathadas 39

(42) AIR 1942 Sind 60 (V 29) : ILR (1941) Kar 563, Sahiiram Rupchand v. Alu Tundu 18

(55) AIR 1955 TravCo 233 (V 42) : ILR (1955) Trav-Co. 331, Krishnan v. Kandan Velu 22

(56) AIR 1956 TravCo 103 (V 43) : ILR (1955) Trav-Co. 600, Narayanan v. Lonappan 16

(1888) 40 Ch D 100 : 58 LJ Ch 75, London Chatham and Daver Rly Co., v. South Eastern Rly Co. 37

C.V. Narasimharao, for Appellant; K. Ramachandra Rao, K. Venkateswararao and G.R. Subbarayan, for 1st Respondent. R.V. Subbarao, for Respondents Nos.2 to 6

Judgement

OPINION OF FULL BENCH

CHANDRA REDDY, C. J.: -

The question to be answered by the Full Bench is as to whether mesne profits could be allowed for more than three years from the date of the decree.

2. The facts necessary for the present purpose may be briefly narrated. An action was laid in the court of the Subordinate Judge, Eluru, for possession of the A and C Schedule properties annexed to the plaint and for partition and possession of 1/24th share in the B Schedule properties. During the pendency of the suit, the plaintiff died and the 2nd plaintiff, her husband, was added as the legal representative. That suit was dismissed for reasons which need not be set out here. The 2nd plaintiff carried an appeal to the High Court of Madras A.S.

No.353 of 1933. In March 1938, the High Court reversed the judgment of the trial Court and granted a decree in favour of the appellant. The decree, inter alia, directed the lower Court to make an enquiry as to mesne profits from the date of the institution of the suit and to pass a final decree for the payment of the amount that may be found due upto the date of delivery of possession to the plaintiff.

In 1940, he filed I.A. No.429 of 1940 for ascertainment of mesne profits and during the pendency of it he applied in E.P. No 29 of 1940 for delivery of A and C Schedule properties and for the appointment of a Commissioner for partitioning the B Schedule properties. I.A. No.429 of 1940 was struck off after accepting security from the defendants for the mesne profits to be determined later on. In accordance with the orders passed in E.P. No.129 of 1940, the appellant obtained delivery of possession of the A and C Schedule properties. The judgment-debtors carried an appeal against the order in E.P. No.29 of 1940 to the High Court of Madras and obtained stay of further proceedings. Subsequently, on an application by the appellant complaining that he was dispossessed immediately after the properties were delivered to him, fresh delivery was ordered by the court on 31-8-1946 but it was actually effected in October, 1951.

3. Meanwhile, the appellant filed I.A. No.558 of 1945 for revival of I.A. No.429 of 1940 and for the ascertainment of mesne profits upto 1946. The executing Court determined mesne profits for 17 years from 1926 to 1943 and the profits for the period 1943 to 1946 were left out because an appeal was pending in the High Court against the order of fresh delivery. The judgment-debtors went up in appeal against this determination of the executing Court and the 2nd plaintiff preferred a memo of cross-objections. A Bench of this Court dismissed the judgment-debtors appeal and allowed the cross-objections filed by the 2nd plaintiff to some extent.

4. While that appeal was pending, proceedings were initiated by the present decree-holder for an enquiry into the mesne profits from 1943 to 1951 which led to this reference. This application was resisted by the judgment-debtors on grounds which are immaterial in the context of the present enquiry, no contest having been raised as to the period for which mesne profits were recoverable, the issue with which we are immediately concerned. The trial Court allowed mesne profits at Rs.75/- per acre per year overruling the objections of the judgment-debtors. Dis-satisfied with the quantum of mesne profits, the decree-holder has presented this appeal. The judgment-debtors preferred a memo of cross-objections questioning the legality of the order awarding mesne profits for more than three years from the date of the decree.

5. This matter was directed to be posted before a Full Bench to resolve a conflict between a Division Bench decision of this Court, which will be presently adverted to and that of Division Benches of Madras and of other High Courts.

6. We will now proceed to examine the point as to the period for which mesne profits could be awarded under Order XX, Rule 12, C.P.C. both with reference to the case law and the statutory provisions. It is convenient at this stage to look at the terms of Order XX, Rule 12, C.P.C. omitting the unnecessary portions:

"(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 -

XX XX XX XX XX

(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 at the decree, whichever event first occurs."

So far as we are aware, this is the only prevision in the Code which allows mesne profits from the date of the institution of the suit up to the time of delivery.

7. This provision has been the subject of judicial interpretation in many a case. We will now refer to the decisions bearing on this subject.

8. In Grish Chunder Lahiri v. Shoshi Shikhareswar Roy ILR 27 Cal 951, the decree, after declaring the plaintiffs right to the property in dispute, recited that

"he do get from the defendants khas possession of the same and mesne profits for the period of dispossession etc"

. No doubt, the expression used was mesne profits for the period of dispossession. Indisputably, that is tantamount to mesne profits upto the date of possession. Their Lordships of the Privy Council ruled that as this was more than three years from the date of the decree and to the extent of the excess, it was unauthorised by section 211 of the old code. It is plain that the relief should be limited to three years notwithstanding the express terms of the decree that the plaintiff should get profits until delivery of possession. This is clear authority in favour of the view that mesne profits could not be recovered for more than three years from the date of the decree. It is true that this decision was rendered under section 211 of the old Code, which is the predecessor of Order XX, Rule 12(c), C.P.C. We will presently show that the position is the same even under the new Code.

9. However, we will read here section 211 of the Code 1882. That section enacted:

"When the suit is for the recovery of possession of immoveable property yielding rent or other profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or until the expiration of three years from the date of the decree (whichever event first occurs) with interest thereupon at such rate as the Court thinks fit."

10. The only change effected in the new Code in this behalf is the addition of the clause "the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or" In our opinion the insertion of this clause had not made material difference with regard to the term for which mesne profits should be awarded, the disjunctive, or". governing both clause (i) and clause (ii) despite its having been shifted from clause (i) and put in clause (ii). The Legislature by adding clause (ii) had fixed another date upto which mesna profits could be determined. We do not think that the Legislature intended to allow the decree-holder to recover mesne profits for an indefinite period and to enlarge the period for which mesne profits were recoverable under the old Code. That this is so would appear from the rulings to which we will advert presently.

11. The same view was taken by the Bombay High. Court in Narayan Govind v. Sono Sadashiva, ILR 24 Bom 345. There, the decree dated 19-9-1884 directed the plaintiff to get mesne profits till the date of delivery of possession, the amount to be fixed in execution of the decree. Nevertheless, the Bombay High Court decided that the mesne profits should be limited to three years subsequent to the date of the High Court decree. Jenkins C.J. who delivered the opinion of the Court, said at page 349:

"But, we may point out that, as held by the Full Bench in Puran Chand v. Roy Radha Kishen, ILR 19 Cal 132 (FB), the proceedings for the purpose of ascertaining the amount of mesne profits are a continuance of the original suit and the Court in so ascertaining the amount Is bound by the provisions of section 211. It is true that possession has not yet been delivered to the decree-holder. But this fact does not prevent the clear provisions of the taw being followed."

12. Likewise in Traiiokya Nath v. Jogendra Nath, ILR 35 Ca1 1017, it was laid down that successful plaintiff in a suit for possession and mesne profits could not claim mesne profits accruing after the filing of the suit for more than three years from the date of the decree. In support of this conclusion, the learned Judges relied on the judgment of the Judicial Committee in Bhup Indar Bahadur v. Bijai Bahadur, ILR 23 All. 152 (PC), Where it was said

"it was held that mesne profits were recoverable upto May 11, 1895 (that was the date when the decree was eventually affirmed) and (see section 211 of the Code) for a further period not exceeding three years until recovery of possession."

We may mention here that this was not a case in which the decree specifically directed enquiry into mesne profits upto the date of delivery of possession.

13. Similarly, in Venkata Kumara v. Subbayamma, AIR 1915 Mad 226, it was decided by a Bench of the Madras High Court that in the absence of a period for the calculation of mesne profits being prescribed, the decree must be construed as awarding mesne profits for three years from the date of the decree since the grant of any further sum would be beyond the jurisdiction of the Court. This implies that the award of mesne profits for more than 3 years would be without jurisdiction.

14. We shall now consider the judgments rendered under O. XX, R.12, C.P.C.

15. Godavarti Raja v. Ramachandraswami, AIR 1943 Mad 354 deals with a situation similar to the present one and to ILR 27 Cal 951. It was held there that when the decree was one for possession and mesne profits until delivery it must be interpreted as one giving mesne profits till delivery of possession subject to the limit of three years specified in cl. (iii) of O. XX, R.12 (c).

16. This was followed by a Single Judge of the Travancore-Cochin High Court in Narayan v. Lonappan, AIR 1956 Trav Co 103. This view is shared by a Bench of the Allahabad High Court consisting of Mootham, C.J. and Raghubir Dayal, J. in Jagdish Chandra v. Balaqi Das, AIR 1959 All 242. The learned Judges dealt with this question elaborately and reviewed the case-law on the, Subject. They accepted the dictum in AIR 1943 Mad 354, as correct. The opinion expressed there was that a decree, which was of the same description like the present one should be construed as awarding mesne profits up to three years from the date of the decree in the light of O. XX, R.12 (c) (iii).

17. Bhagwant Vinayak v. Radhakishan, ILR 1959 Bom 871 : (AIR 1959 Bom 536), contains the same principle. Miabhoy, J., held that Order XX, Rule 12 should be read into a preliminary decree for partition and possession and future mesne profits upto the date of recovery of possession, although it was not specifically laid down in the decree that mesne profits were to be restricted to a period of three years.

18. The doctrine of Sahijram Rupchand v. Alu Tundu, AIR 1942 Sind 60, is in accordance with this. A bench of the Sind Chief Court laid down that in interpreting a decree awarding mesne profits under O. XX, R.12 till date of possession, the Court could not read the decree as repugnant to or as ignoring the statutory limitations envisaged in Order XX, Rule 12, C.P.C.

19. In all these cases, the decree directed an enquiry into mesne profits until delivery of possession to the decree-holder. Notwithstanding this, it was ruled in all of them that this relief should be confined only to three years from the date of the decree even if delivery of possession was obtained after the expiration of three years from the date of the decree.

20. A discordant note was struck by Umamaheswaram and Ranganatham Chetty, JJ. in Chittorui Subbanna v. Kudapa Subbanna, 1959 Andh LT 207 : (AIR 1959 Andh Pra 607) : It may be recalled that this appeal also arose out of the ascertainment of mesne profits as directed by the same decree, the matter arising between the same parties as in the present case and mesne profits were allowed to the decree-holder upto 1943 though the decree was made in the year 1938. The learned Judges opined that it was not open to the judgment-debtor to contend that mesne profits ought not to be determined upto the date of delivery of possession since future profits were not directed to be determined in general terms but the decree expressly stated that a final decree should be passed for payment of the amount that may be found due up to the date of delivery of possession to the 2nd plaintiff. In their view, there was no room for reading the terms of Order XX, Rule 12, C.P.C. into such a decree and restricting the mesne profits only upto three years from the date of the decree. They added that since no appeal was preferred against such preliminary decree, it had become final and it was not open to the Court to go behind the decree.

21. In support of their conclusion, they relied on a judgment of this Court in Narayana Dossjee v. Board of Trustees, Tirupati Devasthanams, 1958 Andh LT 19 : (AIR 1959 Andh Pra 64). We do not think that 1958 Andh LT 19 : (AIR 1959 Andh Pra 64), affords any analogy to a case under Order XX, Rule 12, C.P.C. That was a suit for recovery of mesne profits that accrued prior to the institution of the suit and thus falling within the ambit of Art.109 which prescribes a period of three years for the recovery of profits, limitation commencing from the time the profits are received. Though the suit was instituted in 1937 and the plaintiff by reason of that article would ordinarily be entitled to profits until three years preceding the filing of the suit namely April 1934, the Subordinate Judge, who disposed of the suit, held that the plaintiff was entitled to mesne profits from 1933 onwards, the reason given by him being that the suit, should relate back to the original petition filed under section 45 (2) of the Madras Hindu Religious Endowments Act. This award of mesne profits for more than three years became final in that in the appeal preferred by the aggrieved parties, no point was raised on this issue and this was confirmed by the High Court.

It is in such circumstances that the learned Judges in 1958 Andh LT 19 : (AIR 1959 Andh Pra 64), said that it was not open in a mesne profits enquiry to go behind the preliminary decree which was confirmed by the High Court and that as the decrees have become final, the parties were bound by them. It is noteworthy that the Subordinate Judge considered that the suit related back to the original petition; in other words, he felt the suit should be deemed to have been filed on the date the Original Petition was filed. The learned Judges in 1958 Andh LT 19 : (AIR 1959 Andh Pra 64), were not concerned with the correctness of this view as that had become final. Therefore, that was not a case where it was held that mesne profits could be awarded for more than three years under Art.109 of the Limitation Act. Even otherwise, that decision would not govern matters arising under O. XX, R.12. The learned Judges did not discuss the scope of Order XX, Rule 12, C.P.C. No assistance could, therefore, be derived from 1958 Andh LT 19 : (AIR 1959 Andh Pra 64).

22. Krishnan v. Kandan Velu, AIR 1955 Trav-Co 233, cannot also lend much support to the theory propounded by the learned Judges. That was a case of a compromise decree by and under which the decree-holder was allowed to receive future rent till recovery of possession of the property. Kumara Pillai, J. who heard the matter, held that being a decree under Order XXIII, Rule 3, C.P.C, the provisions of Order XX, Rule 12 were inapplicable and the decree-holder was entitled to execute the decree according to the terms thereof. In that situation, it is unnecessary for us to express any opinion on the correctness of AIR 1955 Trav-Co 233.

23. We are inclined to think that the dictum in 1959 Andh LT 207 : (AIR 1959 Andh Pra 607), is not sound and is inconsistent not only with the decided cases of various High Courts and of the Privy Council but also with the language of O. XX, R.12, C.P.C.

24. A decree providing for the ascertainment of mesne profits until delivery of possession of property should be so construed as to harmonise with the provisions of Order XX, Rule 12 (c) (iii). The Court, which made the decree, could not have contemplated that the date of recovery of possession would pass the statutory period of three years laid down by Rule 12 (c) (iii). We should not interpret such decrees in a manner that would bring them into conflict with the statutory limitation imposed by the rule. We have to read it in the light of Order XX, Rule 12, C.P.C. If it is not competent for a Court to allow profits for a longer period by reason of Order XX, Rule 12, C.P.C, there is no reason why we should not construe such a decree as providing for the determination of mesne profits until the recovery of possession but for not more than three years from the date of the decree. While empowering a Court to determine mesne profits in interlocutory proceedings, without the necessity of filing a fresh suit, under Order XX, Rule 12, C.P.C, the Code has also placed a limitation on that power with regard to the period for which a decree for future profits could be given and so it is not competent for a Court to allow profits for a term exceeding three years. That being the real position, there is no reason why we should think that the Judge, who passed the decree, intended to act in disregard of the statutory provisions. On the other hand, we should read it in consonance with Order 20, Rule 12, C.P.C. There is a large body of judicial opinion in favour of this view and this is the solitary case that has taken the opposite view.

25. For these reasons, we hold that 1959 Andh LT 207 : (AIR 1959 Andh Pra 607), was wrongly decided and that the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree in spite of the provision in the preliminary decree directing enquiry as to mesne profits till recovery of possession of the property by the decree-holder.

26. We answer the question in the negative. The case will go back to the Bench that referred this matter for decision on other issues.

"This appeal and the cross-objection came for final hearing on Friday the 16th day of February, 1962 before a Division Bench of Chandra Reddy, C.J. and Anantanarayana Ayyar, J. The Court delivered on 23rd February, 1962, the following Judgment. This judgment was delivered by:-

ANANTANARAYANA AYYAR, J.: -

27. This appeal and the connected memorandum of cross-objections arise under the following circumstances.

28. One Hudapa Subbanna was the plaintiff in O.S.No.104 of 1926 on the file of the Subordinate Judge, Eluru. That was a suit for possession of certain properties namely, A and C schedules and for partition of B schedule. Chitturi Subbanna is the first defendant in that suit. After trial, the suit was dismissed. The plaintiff filed A.S. No.353 of 1933 in the High Court at Madras. That Court, by its judgment dated 7-3-1933 awarded a decree granting past mesne profits and also further mesne profits till date of delivery of possession. The plaintiff ultimately filed I.A. No.1014 of 1952 in O.S. No.104 of 1926 in the Sub-Court, Eluru under order 20 R.12 (2) and S.151 C.P.C. praying for an enquiry into mesne profits for the period between February, 1943 and October, 1951. There were thirty one respondents in the petition. The first respondent contested the petition raising various pleas. The thirtieth respondent also filed a counter and contested it. The learned Subordinate Judge appointed a Commissioner to enquire into the mesne profits. After considering the report of the Commissioner and hearing both sides, the learned Subordinate Judge awarded a decree for a certain sum. The plaintiff filed A.S. No.368 of 1956 valuing it at Rs.43,980. Chittoori Subbanna filed cross-objections against the decree of the lower Court for mesne profits.

29. For purposes of convenience, we are hereafter referring in this judgment to Kudapa Subbanna as the plaintiff and to Chittoori Subbanna as the defendant.

30. One of the grounds raised in the memorandum of cross-objections was that the plaintiff was not entitled to recover mesne profits for more than three years from the date of the preliminary decree, which was passed in 1938. In 1959 Andh LT 207 : (AIR 1959 Andh-Pra 607) a Division Bench of this Court consisting of Umamaheswaram, J. and Ranganadham Chetty J. held in its judgment dated 13-9-1958 that there was no substance in the contention that mesne profits ought not to be awarded for more than three years from the date of the decree, under Order 20 R.12 C.P.C. When this appeal and the memo of Cross-objections originally came on for hearing before us on 23-10-1959, a reference was made to the Full Bench in the following terms:

"We are told that there is a conflict between 1959 Andh LT 207 : (AIR 1959 Andh-Pra 607) ........ on the one hand and AIR 1915 Mad 226 and also decisions of other High Courts on the other, on the interpretation of Order XX, Rule 12 C.P.C. To resolve this conflict this matter will be placed before a Full Bench. Accordingly, a Full Bench of this Court (of which one of us was a member) formulated the following question

"Whether mesne profits could be allowed for more than three years from the date of the decree?" It answered the question in the negative. The matter is now coming up before us after reference to the Full Bench.

31. It is clear that, in view of the answer of the Full Bench mesne profits cannot be awarded to the plaintiff for more than three years counting from the date of the decree namely, 7-3-1938. The period, for which mesne profits were claimed in I.A. No.1014 of 1952 fell entirely after expiry of a period of three years from the date of the decree namely, 7-3-1938. Consequently mesne profits as claimed in I.A. No.1014 of 1952 cannot be granted at all. So, the appeal has to be dismissed and the memorandum of cross-objections has to be allowed on this ground alone if it were the only aspect to be considered. But, various other points have been urged as well. We shall presently consider them.

32. For a proper appreciation of the respective contentions, it is necessary to briefly set out some relevant facts.

33. In these proceedings, we are concerned with A and C schedule properties and not with B schedule properties. The plaintiff filed E.P. No.29 of 1940 for delivery of possession of properties of A and C schedules. He also filed on 31-7-1940 I.A. No.429 of 1940 for ascertainment of mesne profits. The lower Court ordered delivery of properties of schedules A and C in E.P. No.29 of 1940. Accordingly, plaintiff got possession of those properties on 17th, 18th and 20th of February 1943. Defendant filed C.M.A. No.104 of 1943 in the High Court and obtained stay. It is the case of the plaintiff that the defendant forcibly entered into possession of the properties of A and C. schedules on 26-2-1943. The plaintiff again asked for delivery of properties and the Sub-Court, Eluru passed an order dated 31-8-1946 directing fresh delivery. C.M.A. No.393 of 1946 against such order was dismissed by the High Court of Madras. Plaintiff obtained fresh delivery in October, 1951. Meanwhile, on 23-6-1945, the plaintiff filed I. A. No.558 of 1945 for revival of I.A. No.429/1940 which had been struck off on 25-9-1944 and for determination of mesne profits.

Though mesne profits were asked in that petition (I.A. No.558 of 1945) upto 23-6-1945, by the consent of parties, mesne profits were determined for a period of 17 years i.e., 1926 to 1943 up to the date of the first delivery. The mesne profits beyond 1943 were left out by the order of the High Court because an appeal was pending in the High Court namely C.M.A. No.393 of 1946 against the order of second delivery dated 31-8-1946. On those lines the Sub-Court passed an order dated 28-7-1948 in I.A. No.558 of 1945, against which the defendants filed A.S. No.736 of 1952 in this Court. A Division Bench of this Court, as referred to earlier by its judgment dated 13-9-1958, dismissed the defendants appeal and allowed to some extent, cross-objections which had been filed by the plaintiff. That judgment is the one reported in 1959 Andh LT 207 : (AIR 1959 Andh-Pra 607). Leave to appeal to the Supreme Court has been granted in S.C.C. M.P. No.4540 of 1959 against the judgment and decree in A. S.No.736 of 1952 : (AIR 1959 Andh-Pra 607). Plaintiff filed I.A. No.1014 of 1952 on 16-9-1952 for enquiry into mesne profits from 1943-1951 and resulted in the order against which the present appeal and Cross-objections have been filed.

34. Sri C.V. Narasimha Rao the learned Advocate for the appellant, has urged before us, the following contentions:

(1) It is not open to the defendant to raise in this Court the plea that mesne profits cannot be granted for more than three years from the date of the decree itself, as the defendant had not raised it in the lower Court.

(2) The defendant cannot challenge the award of mesne profits by the lower Court in his cross-objections (as distinct from an appeal).

35. Point: 1: It is here convenient to refer to para 4 of the counter filed by the defendant which reads-

"It is not correct to state that the petitioner is entitled to mesne profits from 1943 to 1951 on the plaint A schedule and from 1943 to 1950 on the B schedule properties."

Thus, in this counter, the defendant has definitely contested the claim of the plaintiff for mesne profits from 1943 to 1951-, regarding properties of A schedule. It is true that he has not expressly mentioned or made any reference to Order 20 R.12 C.P.C. and did not express explicitly in so many words, that the claim was not tenable because of the wording of O.20, Rule 12, C.P.C. But I.A. No.1014 of 1952 itself had been filed under O.20 R.12 C.P.C. and the entire proceedings and award of the lower Court were under O.20 R.12 C.P.C. Consequently, no special significance can be attached to or an adverse inference drawn from the defendants failure to refer to O.20 R.12 C.P.C. in the contention referred to above in his counter. We find that the defendant had substantially raised in the lower Court, regarding schedule A the contention which he has raised in his cross-objections. Even apart from this, we consider it fit to be allowed to be raised in this Court as it is a pure question of law. We accordingly allowed it as a ground validly raised in these proceedings (regarding A schedule and C schedule) and referred to the point concerned in it to the Full Bench and obtained the latters answer.

36. The learned Advocate for the appellant-plaintiff has also contended that the defendant cannot raise this ground as he had waived it by allowing the enquiry to go on regarding the concerned period and also by not raising it in the earlier proceedings in I.A. No.429 of 1940. In the first place, it must be remembered that, in I.A. No.429 of 1940, there was no scope for the defendant contending that mesne profits could not be asked for any period after three years from the date of the decree; for, three years had not yet elapsed between the date of the decree (7-3-1938) and the date of the filing of the petition (I.A. No.429 of 1940) on 31-7-1940. In I.A. No.558 of 1945, for revival of I.A. No.429 of 1940 and for determination of mesne profits, the defendant did not raise the plea that mesre profits could not be awarded beyond three years. This fact is also mentioned in the judgment of the Bench in 1959 Andh LT 607 : (AIR 1959 Andh-Pra 607), wherein it is stated thus:

"Objections were filed as against the Commissioners report only in regard to the quantum............ In paragraph 6 of the Judgment, the learned Subordinate Judge summed up the position in the following terms:

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 ............ The contest is only with regard to the quantum and not to the periods mentioned, above But, the Full Bench has clearly stated that it is not competent for a Court to allow profits for a term exceeding three years. It observed as follows:

"............For these reasons we hold that 1959 Andh LT 207 : ( AIR 1959 Andh-Pra 607), was wrongly decided and that the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree in spite of the provision in the preliminary decree directing enquiry as to mesne profits till recovery of possession of the property by the decree-holder."

Thus, the Full Bench has positively held that the Court could not validly award mesne profits for more than three years from the date of the decree.

37. Reliance is placed by Shri C.V. Narasimha Rao on the decision in London Chatham and Doer Railway Co, v. South Eastern Railway Co. (1888) 40 Ch D 100. In that case, two railway companies have entered into an agreement to submit matters in dispute to arbitration. Under the provisions of the 4th and 26th sections of the Railway Companies Arbitration Act 1859, it was obligatory on the Court to give effect to the agreement for arbitration if either of the parties insisted on it; but the Court was not deprived of its jurisdiction to determine the matters in dispute if neither party insisted on arbitration. In that case, the defendant had, in his pleadings, insisted on his right to arbitration, but had failed to raise the point at the hearing, and had gone into evidence on the merits. The Court of Appeal refused to allow the point to be raised in the appeal. In fact, in that case the defendant waived that plea and, in consequence, his right to the agreement for arbitration being given effect to by the Court. His conduct is referred to by the learned Judges as follows: (at page 105).

".........But even then the Defendants did not say while the decision in the House of Lord 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 had insisted on it in a proper way and at a proper time"

.

In that case, the Court had jurisdiction only if the defendant, like the plaintiff, did not insist on the arbitration agreement being given effect to. Though the defendant formally raised the plea viz., insisted in giving effect to agreement for arbitration in his pleadings, in fact he waived it by\his conduct at the time of trial. if the defendant had succeeded in the trial Court, he would have kept quiet but because he did not succeed and felt dissatisfied with its decision, he tried to come forward with the plea in the appeal. In effect, the defendant took up an attitude so as to obtain the benefit of the decision, it were in his favour and endeavour to set aside the decision, if it were adverse to him. In those circumstances the learned Judges felt that the appellant acted in an indecisive manner and that the point should not be allowed to be raised in the appeal.

38. In the present case the position is materially different. So far as I.A. No.1014 of 1952 is concerned, the defendant did raise the contention in the lower Court regarding schedule A that the plaintiff was not entitled to mesne profits for the period claimed. There is nothing to prove or even indicate that he gave up that plea. Waiver means an intentional relinquishment of a known right. It implies being conscious of ones right and giving it up. We find that the defendant did not give up his plea or waive his objection to the award of mesne profits for a period for which mesne profits could not be lawfully given under Order 20 Rule 12 C.P.C.

39. In Raja Chetty v. Jagannathdas 1949-2 Mad LJ 694 : (AIR 1950 Mad 284) a lease of a cinema theatre with furniture, fittings, talkie equipment, machinery etc., was entered into by a registered agreement after the commencement of the Madras Buildings (Lease and Rent) Control Act (XV of 1946) and the lease contained inter alia provisions as to the due date for payment of rent, hire etc., and for re-entry in case of default In their payment. An application was filed by the landlord for eviction of the tenant under S.7 (2) (i) of the Act for default in payment of a months rent on the due date. The Madras High Court held that the provisions of Madras Act XV of 1946 would not apply to the lease In question as the landlord must, by the agreement, be deemed to have waived the right to evict conferred by the Act. In this case, "there is no agreement between the plaintiff and the defendant that the latter should pay mesne profits irrespective of limitation.

40. Assuming for arguments sake, without admitting that the defendant waived the plea in the lower Court regarding properties of schedule A and kept quiet without pressing it, it would only mean that he must be placed in the same position as if he had not raised the plea in his counter. It cannot be treated as, or deemed to be, positive consent given by the defendant to award of mesne profits for a period for which the Court was not ordinarily competent to grant under Order 20 Rule 12 C.P.C. The defendant did not positively consent in the lower Court to mesne profits being awarded for the period claimed in I.A. No.1014 of 1952, regarding Schedule A or Schedule C properties; as distinct from the quantum. Under the law i.e., Order 20 Rule 12 C.P.C. as interpreted by the Full Bench and the facts namely the claim being for a period which entirely more than three years beyond the date of the decree, the lower Court had no competence or jurisdiction to grant the relief. Consequently, even if the defendant did not actually raise the plea but kept silent without making reference to the lack of competence and jurisdiction of the Court to grant the mesne profits as claimed in I.A. No.1014 of 1952, all the same, the Court did lack jurisdiction and competence to award the relief. We do not find it necessary to consider whether mesna profits for the period claimed could have been granted it the defendant had positively agreed to their being granted though it was more than three years after the date of the decree. For, on the relevant facts and contentions, made before us, that question does not arise and there is no need to go into that question.

41. In Kiran Singh v. Chaman Paswan, 1954 SCJ 514 : (AIR 1954 SC 340) the Supreme Court held that a decree passed by a Court without jurisdiction was a nullity and that its invalidity could be set up whenever and wherever it was sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Hence, the ground now raised by the defendant can be raised even in this appeal though, in fact, it bad not been raised in the lower Court. We find that Contention No.1 is not tenable.

42. Contention No.2. Order 41 Rule 22 (1) runs as fallows:

"Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court ....."

43. Shri C.V. Narasimha Rao has relied on the decision in Pran Krishna Das v. Protab Chandra, 38 Ind Cas 536 : (AIR 1918 Cal 227) wherein it was held that Order 41 Rule 22 C.P.C. only permitted a respondent to support the decree of the lower Court on any of the grounds decided against him or to take cross-objections and that it did not entitle him to take an entirely new ground which was not decided against him and which was not in issue in the lower Court. That was a case of an appeal against an order passed in execution. It does not appear from the reports that any cross-objection was filed in the appeal. In fact, it was observed as fellows.

"There is no question of cross-objection in this case, and the particular ground which is now taken was not decided against the respondent, nor was it in issue in the lower court nor was it the subject of adjudication at all"

.

That decision is not an authority for the proposition that a respondent cannot take a new ground in a cross-objection which is actually filed by him.

44. The decision of the Bombay High Court in Rammohan Rai v. Somabhai, AIR 1950 Bom 161, cited by Sri C.V. Narasimha Rao also does not help the appellant. That was a case where cross-objections could not possibly be filed by a party because nothing had been decided against him and consequently, that party could not appeal from the decree.

45. In Ramasray Singh v. Bibhisan Sinha, AIR 1950 Cal 372 the facts were : On an application filed under Section 38 (3) of the Bengal Money Lenders Act by the borrower against the creditor, two points arose for decision; (1) Is the loan a commercial loan ousting the scope of the Bengal Money Lenders Act, 1940 and (2) If it was not a commercial loan what should be the amount of the liability of the applicant calculated in accordance with the Bengal Money Lenders Act. The teamed Subordinate Judge held on Point No.1 that the loan was not a commercial loan and on Point No.2 that the amount due was Rs.2,029/-. The borrower filed an appeal against the quantum before the District Judge. The lender did not file an appeal but filed cross-objections in time. The District Judge held in the appeal that the amount due was only rupees 1956. He also held that the lender should have filed an appeal and that the cross-objections was not entertainable and accordingly dismissed the cross-objections. The lender appealed to the High Court The learned Judges observed as follows: (at page 373)

"The contention of the learned advocate appearing on behalf of the respondent was that before a party can file cross-objections he must accept some part of the decree as good. If he challenges the whole of the decree. In that case according to him, the respondent to the appeal has no right to file a cross-objection. In our view that contention is unsound.

"Order 41 R.22 consists of two parts....... the second part of R.22 gives the respondent a right to file a cross-objection which he could have taken by way of appeal. This right to file a cross-objection is not limited in the way suggested by the respondent. If an appeal is filed, the respondent to the appeal, without filing any appeal, can take cross-objection to the decree on any ground on which he could have filed an appeal."

We express our respectful accord with the above observations. So, the respondent can impugn the award of mesne profits by the lower Court for more than three years by means of a cross-objection. We find accordingly and hold that contention (2) is also not tenable.

46. In the result, we find that all the contentions raised by the appellant in A.S. No.368 of 1956 are untenable. The award of mesne profits by the lower Court for the period February, 1943 to October 1951 is invalid and improper. Consequently, we dismiss the appeal but in the circumstances we direct each party to bear its own costs throughout.

47. We allow the cross-objections and dismiss I.A. No.1014 of 1952. But, considering the circumstances of the case, we direct each party to bear its own costs.

Appeal dismissed : Cross

objections allowed.