The Judgment of the Court was delivered by
Mitter, J.:— The appellants are decree-holders. They have appealed against an order dismissing their application for execution on the ground that Annada who is one of the persons seeking execution of the decree is neither one of the original decree-holders nor an assignee of any of the original decree-holder is and on the further ground that their previous application for execution having been dismissed for default and the application having been treated as an application in the original suit the claim of the plaintiff for recovery of mesne profits from the defendants cannot be sustained. In other words it has been held that the effect of the dismissal of the previous application for execution on the ground of default amounted to a dismissal of the claim for mesne profits. Both Courts have concurred in this view and the present appeal is directed against the concurrent judgments.
2. In second appeal in this Court two points have been raised on behalf of the appellants. It has been contended in the first place that it was not open to the respondents judgment-debtors to raise the plea that Annada Kumar Roy was not entitled to execute the decree on the principle analogous to the principle of res judicata by reason of the previous orders made in the course of execution. The second contention is that the lower appellate Court is in error in treating the application in execution as an application in the original, suit and in holding that the dismissal of the previous application for ascertaining of mesne profits on 27th August 1927 had the effect of dismissal of the claim of the plaintiffs, decree-holders, for recovery of mesne profits from the defendants. A few facts require to be stated in order to understand the contentions raised by this appeal. It appears that the decree for recovery of khas possession was obtained by two persons Rasik and Jadunath who were purchasers at a revenue sale. Rasik sold his share to Annada by a conveyance. Annada did not get himself substituted in the decree in place of Rasik and the decree was obtained by Rasik and Jadu Nath.
3. It appears that the decree directed ascertainment of mesne profits in the course of execution. This direction in the decree was already contrary to the provisions of O. 20, R. 12 of the CPC, of 1908, which had come into operation when this decree was passed. It appears however that neither party carried this matter to a higher Court to have the form of the decree rectified or corrected with the result that the decree directing ascertainment of mesne profits in execution stands.
4. It appears next that prior to this application in execution other applications for execution of the decree were made by Annada Kumar Roy along with other decree-holders. It is necessary in particular to mention the previous execution case No. 108 of 1925 where the application was made for determination of mesne profits at the instance of Annada also. This application was refused and an objection on the score of limitation and on the score of incorrectness of the decree was raised and a general objection was taken that the application for execution could not be maintained. The matter was carried to the appellate Court and eventually the lower appellate Court found that the execution case was maintainable. It is said with reference to the first point raised by this appeal that this decision operates as a bar and precludes the contention that the decree could not be executed by Annada, a contention which has prevailed with the lower appellate Court and which is challenged as wrong by this appeal. We are of opinion that the argument of the appellants in this behalf is well founded and must prevail. There can be no doubt having regard to the previous direction given in the execution of the decree at the instance of Annada that this fact prevents or precludes the judgment-debtors contending as they are doing now that the decree cannot be executed at the instance of Annada on principles analogous to the principles of res judicata which have been enunciated in the very early case of Mungul Pershad Dichit v. Girija Kant Lahiri . 1882 8 Cal 51.
5. In order to determine as to whether the decree could be executed at the instance of Annada and whether the execution of the decree could proceed it was essential to consider whether Annada had any locus standi to maintain the application for execution. The lower appellate Court seems to think that the principle of constructive res judicata or rather the principle analogous to the principle of constructive res judicata has no application to execution proceedings. It seems to us that is not a correct view to take. The tendency of the recent decisions is to hold that where the effect of the decision is that the application for execution is held as maintainable it has the effect of deciding that the person at whose instance the application is held maintainable has a right to maintain it, although there are no doubt some observations in some of the decisions in the Madras Court to the effect that Expl. (5), S. 11 of the Code or the principle embodied therein has no application to orders made in the course of execution: see the case of Subramania Ayyar v. Raja Rajeswara Dorai . AIR 1918 Mad 1167, where the observations are really obiter and it does not seem on principle that any distinction should be made in this respect between suits and execution, proceedings. We are therefore of opinion that the first contention is sound and must prevail.
6. The next contention is, as has already been stated, that the application for ascertainment of mesne profits (which was directed to be made in the course of the execution) having been dismissed it cannot be said that the entire claim for mesne profits has been dismissed. There was no doubt some authority for the contrary view: see the case of Upendrar Chandra Singha v. Sakhi Chand . 1912 15 IC 709., but it seems that the true legal position has been indicated in a recent decision of their Lordships of the Privy Council in the case of Kedarnath Goenka v. Anant Prosad Singh . AIR 1925 PC 117. It was held in that case by their Lordships of the Judicial Committee which approved of the decision of the Patna High Court that even under the Code of 1882 such proceedings should be held to be proceedings in execution and not in the suit and that therefore substitution was not necessary. It was argued on behalf of the respondents that as the decree was passed after the Code of 1908 had come into force the decree must be regarded as one which is incapable of execution seeing that the decree was clearly opposed to the terms of O. 20, R. 12 of the CPC.
7. It is open to the Court to pass a wrong decree and if any of the parties are aggrieved by it the remedy is to have the decree corrected by the Court of appeal. As has been pointed in the case of Malkarjun v. Narhari . 1901 25 Bom 337 the Court has jurisdiction to decide wrongly or rightly. The question cannot be raised; in the course of execution until the respondent has established that the effect of passing a wrong decree is to take away from the jurisdiction of the Court which passed it, such a position is wholly untenable. It is next argued for the respondents that even treating this application as one made in, the course of execution the effect of the dismissal on the ground that the decree-holders did not make an endeavour to have the proper evidence brought before the Commissioner who was appointed to ascertain mesne profits is that no further application for execution can be maintained. The order, which is said to be a bar on behalf of the respondents to any further application for execution, is dated 27th August 1927 and runs as follows:
“Decree-holders pleader heard. Decree-holder will not proceed with this execution. As will appear from the Commissioner's report, he did his level best to secure the attendance of the decree-holders at the enquiry directed at their own instance. Decree-holder's pleader was informed on several dates, but there was no response. The Commissioner has therefore returned the writ unexecuted. I have carefully considered the bill submitted by him, and in the circumstances of this case (as will clearly appear from his report and his diary), I allow him a sum of Rs. 25 as his fees and compensation. This execution case stands dismissed with costs.”
8. It is impossible to accept the contention of the respondents that order operates as a bar to a further application for execution. This order did not determine the rights of the parties on the merits. There is nothing in law to prevent a further application for execution unless there has been a determination of the question as to whether the execution can proceed or not by a previous order. We are therefore of opinion that the second contention also must succeed.
9. The result is that we set aside the order of the Courts below dismissing the application for execution against defendants other than those who will be mentioned presently. We also direct that so far as the costs of this appeal is concernad the appellant must pay those costs. We assess the hearing fee at two gold mohurs for each set of respondents represented by Mr. Nasim Ali and Mr. Chowdhury respectively. The appeal will stand dismissed as against the following respondents: Respondents 33, 35, 43, 45, 93, 111, 131, 157, 162, 166, 87, 129, 172, 176, 180, 95, 201, 205, 207, 208, 211 and 212.
Henderson, J.:— I agree.
R.K
10. Order accordingly.