Sri Raja Rao Sri Swe... v. Ayyagiri Sodemma (Pe...

1. This appeal is from the order passed by the Principal Subordinate Judge of Vizagapatam in E.P. No. 44 of 1924, which arose out of a suit filed by one Sodemma against the Maharajah of Bobbili for recovery of a certain land on the ground that it was granted to her husband, who was a Sheristadar of the Estate, as inam. The Subordinate Judge dismissed the claim, but on appeal to the High Court it was decreed. It is said that an appeal is now pending before the Privy Council. The execution petition was to recover mesne profits for three years before suit and until delivery, or for the years 1913 to 1921. The decree awarded profits at the rate of 6 garces 27 putties per annum but did not fix the rate at which the grain was to be converted into money. This is one of the questions which now arises for decision. The only other question is whether the learned Subordinate Judge was right in awarding interest.

2. The arguments have dealt with three possible rates of conversion:

(a) the rate of Rs. 61-8-0 as claimed in the plaint,

(b) the takshish rate applicable to the Bobbili Estate,

(c) the market rate as recorded in the Gazette with or without any deduction.

3. Now as to (a) the first contention is that as the plaintiff named this rate in the plaint she cannot be allowed anything in excess of it. But that was a question for the Court which passed the decree, which was at liberty, if it thought fit, so to limit the claim. The executing Court cannot go behind the decree, and is only concerned with its true construction. The question we have to decide is, this : the decree awarding to its holder 6 garces 27 putties of paddy per annum over a series of years, what is the correct equivalent in cash which the judgment-debtor should pay? The other argument for a rate of Rs. 61-8-0 per garce is that it is the commutation rate for estate jeroyiti lands, as fixed by a decree of this Court, since mesne profits of property is to consist "in those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received"--the question of interest will be considered later--it is urged that their measure must be what the judgment-debtor would as Zamindar have received for these lands as jeroyiti lands. There is, I think, no real basis for this argument, because it loses sight of the fact that the property was not jeroyiti land at all, but inam land which the Zamindar had no right in as landholder. Admittedly the commutation rate, which was fixed with reference to prices prevailing over the years 1898 to 1908, is much below the average market rate for the period under reference, 1913 to 1921. Although no doubt the definition of "mesne profits" requires that the estimate should be based upon what the judgment-debtor, and not what the decree-holder, received or might have received, it certainly does not mean that regard must be had to any limitations or restrictions under which the judgment-debtor would have laboured, had the property been what he represented it to be. The plaintiff herself does not claim more than would be due to a person in possession of the property as a receiver of rent, and under the terms of the decree it must be as a receiver of rent-in kind that the respondent's liability must be fixed.

4. There is, I think, little to be said in favour of (b), the takshish rate. This rate is said to have been fixed upon reports by the zamindari officials, but there is nothing to show that the figure given, Rs. 108-1-5, represents the true conversion rate over the period in question. In fact, the discrepancy between this rate and the market rates found in the Gazette suggests that the figure does not accurately reflect the prevailing prices.

5. There remains (c), the average market rate at Valkonda, Rs. 138-1-9, adopted by the Lower Court. The decree providing for a grain payment in respect of the mesne profits of each year, this is clearly, I think, the correct money equivalent to apply. The only further point is whether, since this rate prevailed at Valkonda whereas the payments relate to the village of Sankili, any deduction should be allowed. It appears that in fixing the general commutation rate for the Estate, a deduction of 15 per cent. from the rates at market centres was provided for, but there is nothing upon the record to show that any such deduction needs to be made here. It is not even alleged that Sankili is at such a distance from Valkonda as would materially affect the price of grain, or that the river which is said to run between the two places offers any obstacle to transport. In these circumstances, there do not appear to me to be grounds for interfering with the rate fixed toy the learned Subordinate Judge, and I would confirm it.

6. There remains the question whether the executing Court was competent to grant interest, no express provision for interest being made in the decree. The argument addressed to us is that where a decree leaves the amount of mesne profits to be determined in execution, it may be open to the executing Court to allow interest, but that where the decree fixes the amount of the mesne profits, or even, as here, the amount of grain per annum, no such allowance can be made. As authority for this proposition we are referred in the first place to the decisions of two learned Judges of this Court each sitting singly, that of Madhavan Nair, J., in Raman Menon v. Pangunni Menon (1926) 50 MLJ 563 and that of Wallace, J., in Appeal Against Appellate Order No. 74 of 1924. Mr. Justice Madhavan Nair refers with approval to two Calcutta cases, in which the ' proposition above stated has been accepted, and both learned Judges attach importance to the consideration that it may not be clear that in decreeing a certain amount, or a certain rate, of mesne profits the Court did not itself allow for interest by a consolidation of it with the principal. I do not think that there is any room for this latter view here, since what has been decreed is clearly and only the rental value in kind. It remains for consideration whether the Calcutta decisions relied upon by Madhavan Nair, J., correctly interpret the law. In Harmanoje Narain Singh v. Ramprosad Singh (1907) 6 CLJ 462 at 470 the line of argument adopted is that where a Court ascertains the mesne profits and embodies the result in its decree, but omits to allow interest, it is not open to the executing Court to allow interest because (a) there is no rule which makes it obligatory upon the Court to allow interest on mesne profits, and (b) the Court which executed a decree must execute it as it stands. For proposition (a) there is other authority Kisknanand v. Kunwar Partab Narain Singh (1884) ILR 40 C. 785 (PC) and Grish Chunder Lahiri v. Skoshi Shikhareswar Roy (1900) ILR 27 C. 951 : 101 MLJ 356 (PC) and since the latter case is a decision of the Judicial Committee no question of its correctness arises for us. This same decision which the learned Judges distinguish is, as it appears to me, of great importance in approaching the consideration of proposition (b); but before turning to it advertence may be made to the other Calcutta case, Narendra v. Byomkesh (1919) 30 CLJ 205. The decree there dealt with awarded the plaintiff compensation at a certain rate per annum for a certain period, without providing for any interest, and the question was whether interest could be allowed in execution. It was contended that the expression "mesne profits" in Section 2, Clause 12 of the Code of Civil Procedure, included interest on such profits, and Grish Chunder Lahiri v. Shoski Shikhareswar Roy (1900) ILR 27 C 951 : 10 MLJ 356 (PC) was again cited in support of this proposition and again distinguished. There is some doubt whether the learned Judges treated the case as a claim to mesne profits at all, as they say that the term used throughout is not 'mesne profits' but 'compensation' but, except that the yearly amount due is fixed by the decree in money instead of in kind the decision may, I think, be taken as an authority in support of the appellant's contention.

7. Referring now to Grish Chunder Lahiri v. Shoshi Shikhareswar Roy (1900) ILR 27 C 951 : 10 MLJ 356 (PC) it is quite true that the decree with which their Lordships had to deal left the amount of mesne profits to be ascertained in accordance with the provisions of Section 212 of the Code of 1882. The question is whether, had the decree fixed the amount or the rate, but made no reference to interest, their conclusion that interest could be added in the subsequent proceedings would have been affected. After referring to the option enjoyed by the Court to grant or withhold interest they proceed:

But the question is, what is the effect of a decree which grants mesne profits and says nothing about interest, which, as their Lordships think, is the proper construction of the decree in this suit. The learned Judges treat that silence as equivalent to a decision that there he no interest. But then it is difficult to see what effect is given to the alteration made in Section 211 in the year 1882. Its obvious effect is to provide that a simple decree for mesne profits shall carry interest on them. No reason has been assigned for holding the true effect to be other than the obvious one. If the Court docs not intend to give interest it should say so.

8. The only construction I can place upon these observations is that, unless the contrary be expressed, mesne profits are to bear interest. Section 196 of the Code of 1859 empowered the Court to provide in the decree for mesne profits with interest thereupon at such rate as the Court may think proper. This clearly required that the Court, if it allowed interest, should expressly say so. The Code of 1877 was the first to include, as an explanation to Section 211 of the Code of Civil Procedure, a definition of 'mesne profits', and, so far as the provision of interest is concerned, the language stood as it now stands in Section 2(12). The Code of 1882 reproduced the explanation unchanged. The point made by their Lordships therefore seems to be that an alteration of substance was made when the 1877 (but, as stated, the 1882) Code was enacted, and that interest, from being a relief which the Court had in terms to grant if it granted it at all, became, so to say, a normal component of mesne profits, to be in terms refused if it was not to be taken as impliedly granted. That is the impression which the language used conveys to my mind, and it is the impression, too, I gain from a consideration of the language of the definition itself. If the expression "mesne profits" is equivalent to "profits plus interest" it is surely no case of going behind the decree, which allows mesne profits, to allow interest, and if it is open to an executing Court to fix the rate at which a grain allowance is to be converted into cash, it may equally fix the rate at which interest should be allowed, once it is found that interest is admissible. I am unable to see how the validity of this argument is affected by the fact that the decree has determined the number of measures of grain at which the profits are to be rendered, once it is clear that this number includes no provision for interest. In Lalta Prasad v. Sri Ganeshji (1922) ILR 44 A 579 this was the view taken by Walsh and Stuart, JJ., basing themselves upon the Privy Council judgment, in the case of a decree awarding a definite sum as mesne profits to the date of institution of the suit, and future profits at a certain rate per mensem. So far as I can see, the alternative position can only be maintained upon purely verbal grounds, that the expression 'mesne profits' in the decree, and therefore the amount awarded as such, by force of the definition necessarily comprises interest, whereas no such contention can in fact be advanced. It has only to be added that in the present instance no reason has been shown why the plaintiff should not be entitled to interest. I would therefore dismiss the appeal with costs.

9. In a memorandum of objections the respondent asks that the rate of interest allowed by the Lower Court should be raised to 12 per cent. The ground given is that certain estate Kadapas (Exs. VI and E) provide for such a rate upon arrears of rent. I do not think this affords sufficient reason for departing from the usual Court rate of 6 per cent. It is also objected that the Lower Court has disallowed the pleader's fee in taxing the costs. The reason for doing this is not ascertainable here, and since the respondent might have sought redress from that Court, I do not think that we should make any order, and I would dismiss the memorandum of objections with costs.

Odgers, J.

10. This is an appeal by the Rajah of Bobbili against the order of the Principal Subordinate Judge of Vizagapatam. The plaintiff, one Sodemma, filed a suit against the Rajah of Bobbili and others for the recovery of possession of certain land which she claimed belonged to her family as mam. This was decreed in her favour by the High Court on 7th October, 1922. The decree ordered that, in respect of Neyyalapolem istuva, the respondent do pay appellants mesne profits at the rate of six garces and 27 puttis for three years before suit and till date of delivery of possession of the said Neyyalapolem istuva to the appellant. The plaintiff in her plaint claimed mesne profits at a commuted money rate of Rs. 61-8-0 per garce. The Judge has allowed the Gazette rate of about Rs. 138-0-0 per garce. I have had the advantage of reading the judgment just delivered by my learned brother and I agree with him on this point for the reasons stated in his judgment.

11. The more important point in this case is that of interest on mesne profits. The Judge allowed interest at 6 per cent. on the mesne profits decreed at the rate of 6 garces 27 puttis. The question is, is he right? Reliance has been placed for the appellant on the decision in Harmanoje Narain Singh v. Ramprosad Singh (1907) 6 CLJ 462, a decision which has been followed in this Court in two decisions of single Judges, Madhavan Nair, J., and Wallace, J. In the Calcutta Law Journal Case, Mookerjee, J., distinguished the cases in Grish Chander Lahiri v. Skoshi Shikareswar Roy (1900) LR 27 IA 110 : 27 C 951 : 10 MLJ 356 (PC) and Girish Chander Lahiri v. Sasi Sekhareswsar Roy (1905) ILR 33 C 329. He said they were "no doubt authorities for the proposition that where a decree states that the plaintiff is entitled to mesne profits and says nothing about interest, if the amount of mesne profits is left for determination by the Court of execution, the decree-holder is entitled to interest upon the mesne profits and to have such interest added to the mesne profits when they are ascertained. But these cases do not lay down that, if the Court which ascertains the mesne profits has omitted to allow interest, it is open to the Court which executes the decree for mesne profits to allow interest in execution proceedings, on the principle that an executing Court must execute the decree as it stands". The learned Judge adds that there is no obligation on a Court to allow interest on mesne profits in which of course he is perfectly right. The portion of his judgment just quoted which I think calls for comment is the phrase "If the Court which ascertains the mesne profits has omitted to allow interest". As far back as 1843 in Kirkland v. Modee Pestonjee Khoorsedjee (1843) 3 MIA 220 the Judicial Committee upheld the practice of the Native Courts in Bombay in treating mesne profits as a judgment-debt and as carrying interest by its own force. In the Civil Procedure Code of 1859, Section 196, the Court might provide in the decree for payment of mesne profits till date of delivery of possession with interest thereon at such rate as the Court might think proper. In the code of 1877, section 211, the Court might provide in the decree for the payment of mesne profits with interest thereon at such rate as the Court thought fit; and in the explanation to the section mesne profits means those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, receive therefrom together with interest on such profits. This is the first appearance of the definition of mesne profits as embracing profits plus interest. The same explanation is repeated in Section 211 of the Code of 1882 and which in our present Code has been removed to section 2(12).the question, here, is whether we are to construe the words of the decree 'mesne profits at the rate of 6 garces 27 puttis' as inferring that the Court meant to disallow interest or that the Court has "omitted to allow interest'' in the words of Mookerjee, J. In Grish Chander Lahiri v. Shoshi Shikareswar Roy (1900) ILR 27 C 951 at 967 : 10 MLJ 356 (PC) the Judiciall Committee laid down that the Court has jurisdiction to give or refuse interest as it chooses, because mesne profits are in the nature of damages. The question, however, before them was as to the effect of a decree which granted mesne profits and said nothing about interest, the learned Judges in the Courts below having treated that silence as equivalent to a decision that there was to be no interest. Their Lordships point out that if that is to be the proper construction of that silence, it is difficult to see what effect is given to the alteration in the law in the present Civil Procedure Code; and they say that the obvious effect of the alteration is to provide that a simple decree for mesne profits shall carry interest on them and that, if the Court does not intend to give interest, it should say so. If that decision is to be taken on the plain meaning of its language, there is no question but that interest should be allowed on the mesne profits awarded in this case. It is true that in the case under appeal to the Judicial Committee the Subordinate judge commissioned an amin to report as to the amount of mesne profits and his successor made such report. But I doubt if it can be said that the amount of mesne profits was there left for determination by the Court of execution, nor does the judgment of the Privy Council countenance any such distinction, it seems to me, as that drawn by Mookerjee, J., in Harmanoji Narain Singh v. Ramprosad Singh (1907) 6 CLJ 462.

12. In the latter case, Wallace, J., quotes no authority but takes the law to be that when a Court has fixed a figure for mesne profits, it must be taken that that figure includes interest or rather that it cannot be said that it does not. With deference 1 think this view untenable in view of the pronouncement of the law by the Privy Council. In the former case the learned Judges expressly based this decision on Harmanoji Ndrain Singh v. Ramprosad Singh (1907) 6 CLJ 462, and that decision of Wallace, J. supra dissents from the Allahabad decision which seems to me to be strictly in accordance with that of the Privy Council. I have already shown why the distinction pointed out in Harmdnoje Narain Singh v. Ramprosad Singh (1907) 6 CLJ 462 is untenable in view of the Privy Council decision. As Madhavan Nair, J., bases his judgment on that distinction, I must hold with respect that it is wrong. I am therefore constrained to differ from the judgments of both the learned Judges. The two Madras authorities are Raman Menon v. Pangunni Menon (1926) 5O MLJ 563 and the unreported case A. A. O. No. 74 of 1924. In Radharaman Munshi v. Surnomoyi Debi (1903) ILR 30 C 506 the learned Judges held that, on the wording of Section 212 of the Code of 1882, the decreeholder is entitled to receive interest year by year on the amount of mesne profits found due. The Subordinate Judge there declined to award such interest but awarded the decree-holder only 6 per cent. from the date of his decree on the amount excluded therein. The words, according to the learned Judges, of the Code do not refer to interest due after the ascertainment of the mesne profits due under the decree but they contemplate that interest should form a separate item in the calculation of the amount due as mesne profits. There also a Commissioner was appointed to ascertain the amount of mesne profits.

13. Girish Chander Lahiri v. Sasi Sekhareswar Roy (1905) ILR 33 C 329 was a further appeal by some of the parties, the same case as that which went to the Privy Council reported in 27 C. 951. In this case it was held that where nothing is said about interest and the amount is left for determination in execution the decree-holder was entitled to interest on the mesne profits until such mesne profits are actually paid by the judgment-debtors. In a recent decision of the Allahabad High Court, Lalta Prasad v. Sri Ganeshji (1922) ILR 44 A 579, it was held that where a decree for mesne profits is silent as to interest thereon, the decree-holder is entitled to realize in execution interest at the usual rate of 6 per cent. There the mesne profits were awarded in the decree and in execution interest was claimed on the entire amount, i. e., of past and future mesne profits. The learned Judges treat the Privy Council decision in Girish Chander Lahiri v. Shoshi Shikhareswar Roy (1900) ILR 27 C 951 : 10 MLJ 356 (PC) as of unrestricted application and decided accordingly. It appears to me therefore with great respect to Mookerjee, J., and the two learned Judges of this Court who based their decision on the ruling in Harmanoji Narain Singh v. Ram Prasad Singh (1907) 6 CLJ 462 that the distinction made by the Calcutta Judge cannot be maintained, and that, if a Court wishes, as it is perfectly at liberty to do, to avoid the plain meaning of the explanation of mesne profits, i. e., profits plus interest, it must definitely say so. Otherwise the award of mesne profits will be taken also to include interest on those profits.

14. As regards the Memorandum of Objections, I agree with the judgment of my learned brother.

15. I would therefore dismiss the Appeal and Memorandum of Objections both with costs.