Hari Prasad Misser v. Kodo Marya

Chamier, C.J:— Respondents 1 and 2 obtained against the appellants a decree (a) for possession of certain immovable property, and (b) directing an enquiry as to mesne profits. Having executed their decree for possession of the property they sold to respondents 3 and 4 their right to recover mesne profits under the decree which they had obtained. The two original decree-holders and their transferees then presented a petition to the Court of first instance praying that the amount of mesne profits due under the decree might be ascertained. In that petition it was stated that the original decree-holders had transferred their rights to respondents 3 and 4. Various defences were put forward and amongst them was a plea that the transfer of the right to recover mesne profits was contrary to law. That plea was overruled by the Court of first instance and also by the lower appellate Court. The only question which we have a decide in this second appeal is whether the decree for mesne profits was capable of being transferred. It is contended that the right which the decree-holders had under their decree was a mere right to sue within the meaning of Cl. (e), Section 6 of the Transfer of Property Act. It seems to me that the right of the original decree-holders was not a mere right to sue but was a right to have the amount of mesne profits ascertained under the decree which had declared that they were entitled to mesne profits. The decree for possession and mesne profits was passed under the present Code of Civil Procedure and it is quite clear that under the present Code proceedings taken to ascertain mesne profits are proceedings in the suit and not proceedings in execution.

2. The decree-holders transferred to respondents 3 and 4 their right to mesne profits. It seems to me that if the respondents 3 and 4 had followed the procedure prescribed, they would have made an application to the Court under O. 22, R. 10, praying for permission to continue the suit, as assignees of the original plaintiffs decree-holders. No such application was made but an application was made by all four persons as above explained. The first Court made an order in favour of respondents 3 and 4 and must, I think, be taken to have allowed them to continue the suit as assignees of the original decree-holders. As a matter of fact no objection has been taken before us on the ground that the procedure prescribed by O. 22, R. 10, was not followed. The omission to make a formal application under R. 10 cannot be held to be fatal to the right of respondents 3 and 4 to carry on the proceedings.

3. In my opinion what they acquired was something much more than a right to sue. It was a right to carry on the suit in which a preliminary decree had been made and to obtain the mesne profits, I would confirm the decision of the Courts below. The view which I take is supported by the decision of the Calcutta High Court in the case of Prasanna Kumar Panja v. Asutosh Roy(1). I would dismiss this appeal with costs.

4. Kingsford, J.:— I agree.

V.S/R.K

5. Appeal dismissed.