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Case Number

Appeal from Appellate Order no. 278 of 1945, from an order of Mr. T.C Puri, I.C.S, Additional District Judge of Muzaffarpur, dated the 2nd May, 1945 reversing an order of Mr. Saiyid Khalil Mustafa, Munsif at Hajipur, dated the 30th May, 1944

Attorney(S)

B.N Rai and T.P Sinha, for the appellants.
Jaleshwar Prasad, for the respondents.

Judges

Manohar Lall
Reuben, JJ.

Acts

section 47, Civil Procedure

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Smart Summary

Judgment Summary (Reuben, J. and Manohar Lall, J.)

Factual and Procedural Background

This appeal was filed by the decree‑holders against an order of the Additional District Judge, Muzaffarpur, which had reversed the Munsif of Hajipur's decision rejecting an application under section 47 of the Civil Procedure Code (CPC). The decree being executed was for mesne profits and involved a number of judgment‑debtors.

Execution proceedings were instituted for the whole decretal amount against some of the judgment‑debtors. Two separate objections under section 47 were filed by different judgment‑debtors contending that they should not be held liable for the whole decretal amount but only for mesne profits attributable to the portion of the suit land actually in their possession. The Munsif rejected both objections. Only one set of applicants pursued an appeal; the Additional District Judge allowed that appeal and reversed the Munsif.

The decree as recorded in the lower courts was in form a joint and several decree against the nine judgment‑debtors; that form was not challenged before the present Court. The mesne profits had been ascertained in execution by a civil court commissioner in one lump sum, and no attempt had been made at that stage to have those mesne profits severally ascertained against different judgment‑debtors.

Legal Issues Presented

Whether, in execution of a decree for mesne profits styled in form as a joint and several decree, individual judgment‑debtors can, at the execution stage after mesne profits have been ascertained in one lump, insist on being made liable only for a portion of the mesne profits corresponding to the separate portion of land in their possession (i.e., a request under section 47, CPC, to split liability).
Whether the executing court may, under the Civil Procedure Code (1908), itself undertake or order a fresh ascertainment of mesne profits severally against different sets of defendants after a lump‑sum ascertainment has been made and when the issue was not raised at the stage of ascertainment.

Arguments of the Parties

Judgment‑debtors' Arguments

Some judgment‑debtors objected under section 47, CPC, contending they should not be held liable for the whole decretal amount but only for the mesne profits corresponding to the portion of the suit land actually in their possession.

Other Parties' / Court of First Instance Position (as recorded)

The Additional District Judge observed that although the decree was joint and several and it was not illegal to execute it against one judgment‑debtor alone, there were precedents where on enquiry courts held it fair to make judgment‑debtors liable only in proportion to the profits they actually enjoyed. This view influenced the Additional District Judge to allow the appeal from the Munsif's order.
The Munsif (and the court of original instance) found that the defendants in the suit had knowingly taken wrongful possession, introduced fraudulent documents (forged patta and rent receipts) and were therefore trespassers; on that basis the Munsif held mesne profits should be recovered from all defendants (i.e., the decree was enforced jointly and severally).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sheobalak Singh v. Achutanand Singh	Authority where, despite a decree in form being joint and several, the court on execution/ascertainment treated liability as apportioned by share (case involved co‑sharers with definite shares).	The Additional District Judge relied on this case to justify allowing the appeal; the present Court distinguished it on facts (co‑sharers with definite shares vs. cultivators claiming separate possession) and noted that in Sheobalak Singh separate ascertainment was not necessary because co‑share proportions were definite.
Gurudas Kundu Choudhury (Privy Council decision)	The Privy Council construed a decree as not a proper joint and several decree and applied the principle applicando singula singulis (construing the decree as apportioning liability according to separate interests); the question arose at the stage of ascertainment of mesne profits and their Lordships were reluctant to treat certain possessors as trespassers.	The Additional District Judge's reliance on Sheobalak Singh was noted to be itself based on Gurudas Kundu; the present Court emphasized the factual distinctions — in Gurudas Kundu the persons in possession were not regarded as ordinary trespassers and the issue arose at ascertainment — and did not accept that Gurudas Kundu compelled a different result here.
Bhato Ram Modi v. Gogal Ram	Cited for the proposition that, under CPC (1908), the executing court cannot itself undertake a fresh proceeding of ascertainment to split mesne profits after they have been ascertained in lump.	The Court relied on this principle to hold that, having had mesne profits ascertained in one lump and no separate ascertainment sought at that stage, it was not open to the executing court to split the decree into several parts.
Raghubir Singh v. Secretary of State	Same procedural point as Bhato Ram Modi: limitations on the executing court's power to re‑open or re‑ascertain mesne profits under CPC (1908).	Referred to as supporting authority for the limitation on the executing court's ability to perform fresh ascertainment; used to support refusal to permit splitting after lump ascertainment.
Kunhi Kurumban v. Uppukootu Parambil Lakshmi	High Court in a second appeal indicated mesne profits should be assessed severally against different parties in possession of different items of property; special circumstances (award for improvements to certain parties) were present.	The Court treated this as a case decided at the appellate stage (second appeal) and involving special circumstances; it did not consider Kunhi Kurumban inconsistent with its conclusion that, in the present execution stage, it was too late to require separate ascertainment.
Raja Bhupendra Narain Sinha Bahadur v. Rajeswar Prosad Bhakat	Decision involved ascertainment of mesne profits; their Lordships observed that Gurudas Kundu's decision has the effect of modifying general law about liability of joint tortfeasors in the light of special provisions of the CPC.	The Court noted the observation but said it was unnecessary to enter into that complex question in this case; the case did not lead to a conclusion contrary to their result.
Kalidas Rakshit v. Keshablal Majumdar	Their Lordships, relying on Gurudas Kundu Chaudhuri v. Hemendra Kumar Ray, directed ascertainment of mesne profits severally against separate sets of defendants in possession of different interests; direction was given in an appeal against the decree itself.	The Court observed that Kalidas Rakshit was an appeal against the decree and that it supported the proposition that severally ascertainment may be directed at the decree stage — not inconsistent with refusing severance at the execution stage after lump ascertainment.
Bireshur Dutt Chowdhury v. Baroda Prasad Ray Chowdhury; Kamla Prosad Sukul v. Kishori Mohan Paramanik; Ramratan Kapali v. Aswini Kumar Dutta; Basantakumar Basu v. Ramshankar Ray	These cases were listed in the opinion as instances where various opinions have been expressed on related difficult questions about joint tortfeasor liability and mesne profits (no detailed principles extracted in the text).	Mentioned to indicate the complexity and range of authority on the point; the Court expressly declined to enter upon an extended discussion of those difficult questions in this appeal.

Court's Reasoning and Analysis

The Court's analysis proceeded in these principal steps:

Identification of the procedural posture: the decree in form was joint and several and had not been challenged on its face; mesne profits had already been ascertained in execution (by a civil court commissioner) as one lump sum and no attempt had been made at that time to secure severally ascertainment.
Examination of the Additional District Judge's reliance on precedents (Sheobalak Singh, which in turn relied on Gurudas Kundu). The Court analyzed those authorities and noted that in those cases the factual matrix was different — in particular they involved persons in possession who were not regarded as ordinary trespassers and/or co‑sharers with definite shares, and the question there arose at the stage of ascertainment or on appeal against the decree itself.
Distinction on facts: here the defendants were found by the trial court to have knowingly taken wrongful possession and to have produced forged documents (forged patta and rent receipts); they were therefore treated as clear trespassers. This factual finding makes the present case materially different from Gurudas Kundu and Sheobalak Singh.
Procedural and practical consideration: because mesne profits had been ascertained in one lump and there had been no attempt during the ascertainment proceedings to have separate amounts fixed for different sets of defendants, it was too late at the execution stage to require that the lump sum be split into several decrees. The Court relied on authorities (Bhato Ram Modi; Raghubir Singh) to the effect that the executing court cannot carry out such a fresh ascertainment under the CPC (1908).
Consequent conclusion: on the combined basis of the defendants' trespass (fraudulent possession), the procedural posture (lump ascertainment without prior objection), and the limits on the executing court's powers to re‑open ascertainment under the CPC, the Court held that the Munsif's order rejecting the section 47 objections should be restored.
A concurring view by Manohar Lall, J. emphasized that the judgment‑debtors should have objected at the stage when mesne profits were being ascertained; not having done so, they could not now ask the executing court to split the decree, and that the present proceedings lacked materials to allocate mesne profits to separate portions of land.

Holding and Implications

Holding:

APPEAL ALLOWED. The order of the Additional District Judge was set aside and the order of the Munsif (rejecting the section 47 application) was restored. The appellants (decree‑holders) were awarded their costs in this Court and in the Court of the Additional District Judge.

Implications:

Direct effect: The decree will continue to be enforced in its joint and several form against the judgment‑debtors as adjudged by the Munsif; the judgment‑debtors who had sought severance of liability under section 47 are not entitled, at this stage and on these facts, to have the lump‑sum mesne profits split and allocated severally among them.
Procedural lesson: A party wishing to contest a lump‑sum ascertainment of mesne profits and to seek several ascertainment must raise the objection at the stage of ascertainment (or on appeal against the decree), because an executing court under the CPC (1908) is not the proper forum to undertake a fresh severance of an already ascertained lump sum.
Broader precedent: The Court did not purport to resolve the broader, difficult jurisprudential question about the interaction of the general law on joint tortfeasors and special provisions of the CPC; it expressly declined to enter into that detailed discussion. Accordingly, no new general rule of law was newly formulated in this opinion beyond its application to the facts and procedural posture of this case.

Appeal allowed.

Judgment by Reuben, J.; concurrence by Manohar Lall, J.

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S.P Sinha v. J. Tewari

Reuben, J.:— This is an appeal by the decree-holders against an order of the Additional District Judge of Muzaffarpur, reversing a decision of the Munsif of Hajipur rejecting an application under section 47, Civil Procedure Code.

The decree under execution is one for mesne profits in which there are a number of judgment-debtors. The execution has been filed for the whole decretal amount against some of the judgment-debtors. Two objections under section 47 were filed by different judgment-debtors raising the point that they should not be held liable under the decree for the whole amount, but only for the amount of mesne profits corresponding to the portion of the suit land in their separate possession. There were other contentions but we are not concerned with them in the present case. Both the objections were rejected by the Munsif, but only one set of applicants pursued the matter, with the result that the application, was allowed in appeal by the Additional District Judge.

The decree under execution has not been printed, and the copy of the decree, which was on the record of the courts below, has been returned to the party concerned. Both the courts below are definite, however, that the decree, in its form, is a joint and several decree against the judgment-debtors, and the correctness of this has not been challenged before us. The Additional District Judge says:

“It is quite true that the decree was joint and several against all the nine judgment-debtors and that there was nothing illegal in the respondents executing it against the appellant alone. There have, however, been cases where on enquiry it has been held that in such cases it is only fair that the judgment-debtors should be made liable for the mesne profits in proportion to the profits actually enjoyed by them.”

In allowing the appeal, the Additional District Judge relied on; Sheobalak Singh, which itself relied on Gurudas Kundu Choudhury. The case before the Privy Council related to land which had disappeared under the Ganges, and had reappeared after a considerable period of years in juxtaposition to some property held by the Government. The Government assumed the land to be an accretion to their property and put tenants upon it. The property, however, really belonged to three sets of zamindars—the Kundus, the Mukherjees and the Roys. The Roys and the Kundus applied to the Collector claiming the rand, but the Roys did not persevere. The Kundus persisted and subsequently the land was released in their favour, and they were put in possession. The Government during their possession of the land, let it in patni to a person of the name of Srish. When the Kundu family got possession they let Srish to continue as patnidar. After this the Mukherjees and the Roys, who were entitled to 10 annas share of the land, the Kundus being entitled to only 6 annas, sued the Kundus, the Government and Srish for recovery of possession and for mesne profits. The decree in the suit was as follows:

“It is ordered that the claim of this suit be decreed with costs and mesne profits and interests against the principal defendants and the defendants subsequently added………The amount of mesne profits to be ascertained in execution.”

The question that went before their Lordships of the Privy Council arose when the amount of mesne profits had to be ascertained in execution. The High Court by its judgment reported in Raja Promode Nath Roy, held that the zamindar defendants, appellants before the Privy Council, were liable jointly and severally with those in actual possession, and were joint tortfeasors with them. It was argued before their Lordships of the Privy Council that as judgment was given against the defendants upon the theory that these people were all trespassers, and as the decree was for joint and several liability, the mesne profits should be taken upon the calculation of what Srish got out of the land, and there should be a decree against all the other judgment-debtors for that amount. Dealing with this argument their Lordships said:

“Their Lordships have great difficulty in looking upon Srish as a trespasser, or, for that matter, in one sense, even the Kundus as trespassers, because they were in possession of the land and on the only legal title to it which existed namely, the lease from the Government. It is quite true in one sense that they were in wrongful possession because they were taking the whole profits whereas they were only entitled to 6 annas of the profits and not to 16 annas of the profits. Be that however as it may their Lordships cannot accept this argument. They do not view the decree as a proper joint and several decree. They think it is to be construed applicando singula singulis.”

It is to be noticed that in that case the question was raised at the stage of the ascertaiment of mesne profits, and that their Lordships found themselves unable to regard the judgment-debtors as trespassers, and further, that their Lordships treated the case as one for the construction of the decree.

The case of Sheobalak Singh was also one relating to reformed land and, as in the case of Gurudas Kundu Choudhury, the decree was in form a joint and several decree. The judgment-debtors were “co-sharers maliks who claimed the right to settle this land”. Apparently, therefore, their Lordships did not regard the judgment-debtors as ordinary trespassers and Harries, C.J, Dhavle, J. concurring, said:

“In my opinion, on a true construction of the decree, it is not a joint and several decree, but a decree against the defendants for their respective share of the mesne profits.”

Here, again, the question was regarded as a question of construction.

The facts of the present case are distinguishable from both the above cases. This also we are given to understand, is a case of diara land but on the finding of facts in the suit the defendants knowingly took wrongful possession of it, and then fraudulently claimed that the land had been settled with them by the plaintiffs landlords, and produced a forged patta and forged rent receipts in support of this claim. They were, therefore, clearly trespassers. After considering these facts, the court of first instance said:

“I think the mesne profits should be recoverable from all the defendants because according to the allegation in the plaint all of them are in wrongful possession of the lands, and the defendants who are absent have not come forward to deny that they are in possession. Further, according to the evidence adduced on the side of the plaintiffs all the defendants are in wrongful possession, and there if no evidence on the side of the defendants to prove satisfactorily that any of the defendants is not in possession.”

The suit was accordingly decreed against the defendants with a direction that the amount of mesne profits should be determined in a separate proceeding. The appeal against this decree was dismissed by the District Judge. The mesne profits were subsequently assessed by a civil court commissioner, and no attempt appears to have been made at that stage to get them, ascertained severally as against each set of defendants in separate possession of the suit land. It is only at the stage of the execution of the decree after the ascertainment of mesne profits, that the question has been raised. It is now too late, when the mesne profits have been ascertained and decreed in one lump, to ask that the decree should be considered not to be a joint and several decree. In Sheobalak Singh v. Achutanand Singh the question seems to have been raised at the stage of the execution, but in that case the judgment-debtors were co-sharers landlords with definite shares, so that a separate ascertainment of mesne profits in respect of each set of judgment-debtors was not necessary. Here, on the contrary the judgment-debtors are different sets of cultivators who claim to be in possession of separate portions of the land, and the ascertainment of mesne profits realisable in respect of the separate portions would necessitate a further proceedings in ascertainment, which under the Civil Procedure Code of 1908 cannot be done by the executing court, see Bhato Ram Modi v. Gogal Ram and Raghubir Singh v. Secretary of State.

In Kunhi Kurumban v. Uppukootu Parambil Lakshmi the question arose in second appeal against the decree itself and the High Court indicated that the mesne profits should be assessed severally against different parties in possession of different items of property. Further, there were: “special circumstances in this case, namely, that by the very decrees passed by the lower appellate court the defendants who are the parties in possession have been declared to be entitled to be paid to them by the plaintiffs seeking to eject them the value of improvements “and it was

“the case of a defendant to whom according to the judgment of Court a sum is liable to be awarded as for improvements bona fide made by him on property in the belief that he was entitled to the same.”

In Raja Bhupendra Narain Sinha Bahadur v. Rajeswar Prosad Bhakat, the question arose in proceedings for the ascertainment of mesne profits. In Kalidas Rakshit v. Keshablal Majumdar, their Lordships relying on Gurudas Kundu Chaudhuri v. Hemendra Kumar Ray directed the ascertainment of mesne profits severally against separate sets of defendants in possession of different interests in the land. The facts of that case do not appear from the report, but the direction was given in an appeal against the decree itself. None of these cases, therefore, is inconsistent with the conclusion which I have reached above. It is true that in Raja Bhupendra Narain Sinha Bahadur v. Rajeswar Prosad Bhakat their Lordships said that the effect of the decision in Gurudas Kundu is that the general law about the liability of joint tortfeasors for mesne profits must be taken to have been modified by the special provisions of the Civil Procedure Code. It is not necessary in the present case, to enter upon the discussion of this very difficult question upon which various opinions have been expressed. [Bireshur Dutt Chowdhury v. Baroda Prasad Ray Chowdhury, Kamla Prosad Sukul v. Kishori Mohan Paramanik, Ramratan Kapali v. Aswini Kumar Dutta and Basantakumar Basu v. Ramshankar Ray.

On the above grounds, I would allow the appeal, set aside the order of the Additional District Judge and restore the order of the Munsif. The appellants will get their costs in this Court and in the Court of the Additional District Judge.

Manohar Lall, J.:— I agree. The judgment-debtors should have taken objection at the stage when mesne profits were being ascertained. Not having done so they cannot ask the executing court to split the decree into so many parts. We have no materials to find out in these proceedings the amount of mesne profits that should be allocated to the lands wrongfully in possession of the judgment-debtors.

Appeal allowed.

K.D

S.P Sinha v. J. Tewari

Judgment Summary (Reuben, J. and Manohar Lall, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Judgment‑debtors' Arguments

Other Parties' / Court of First Instance Position (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

S.P Sinha v. J. Tewari

Comments