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Case Number

First Appeal No. 169 of 1899, from an order of Babu Jai Lal, Subordinate Judge of Azamgarh, dated the 12th August 1899

Advocates

Maulvi Ghulam Mujtaba, for the appellant.
Maulvi Muhammad Ishaq, for the respondent.

Judges

Knox, J.

Acts

Clause to Section 211 of the Code of Civil Procedure.

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This appeal arises from execution proceedings of a decree dated 7 December 1896 in favour of Babu Raja Ram. The underlying facts as stated in the opinion are:

Musammat Saheb Jan was the original owner of the property and between 1882 and 1884 made three successive mortgages in favour of the ancestor of Raja Ram.
Raja Ram obtained a decree for sale on 4 August 1890. On 7 November 1890 Saheb Jan executed a lease over the property in favour of Sheikh Abdul Ghafur (the appellant), and three days later she appealed the decree; the appeal was ultimately dismissed.
After dismissal, Raja Ram caused the property to be sold and purchased it himself. The sale was confirmed on 20 September 1895 and an order for delivery was given shortly thereafter.
Abdul Ghafur resisted mutation of title in favour of Raja Ram; Raja Ram sued for possession on 5 September 1896 asking also for mesne profits and interest.
On 7 December 1896 the Court decreed possession and cancelled the lease to Abdul Ghafur; the Court held that the plaintiff was entitled to mesne profits from the date of purchase but reserved inquiry into the amount to the execution department. Neither the judgment nor the decree mentioned interest on mesne profits.
On 3 July 1899 Raja Ram initiated execution proceedings claiming mesne profits including interest. The judgment-debtor (Abdul Ghafur) objected to several items claimed (amount assessed for mesne profits, entitlement to interest, collection expenses, sir land rents, and a pleader's fee). Those objections were overruled by the executing Court; Abdul Ghafur appealed and renewed them before this Court, abandoning one of his pleas in the process.

Legal Issues Presented

Whether the decree-holder (Raja Ram) is entitled to interest upon the mesne profits when interest was claimed in the original suit but the decree is silent as to interest.
Whether the judgment-debtor (Abdul Ghafur) is entitled to deduct or charge expenses of collection from the rents he actually received while in possession.
Whether the decree-holder is entitled to receive rents in respect of the "sir land" given competing contentions about ex-proprietary tenancy and prior leases.
Whether the decree-holder is entitled to a pleader's fee on the sum finally determined payable to him.

Arguments of the Parties

Appellant's (Sheikh Abdul Ghafur) Arguments

The appellant contended that interest on mesne profits was expressly claimed but not awarded in the decree; therefore the omission must be taken as a discretionary refusal by the original Court and he should not be ordered to pay interest.
He argued he should be allowed a proper sum for expenses of collection incurred in getting in the rents, relying on the decision Altaf Ali v. Lalji Mal; he claimed a bona fide belief in right to possession under the lease from Saheb Jan and that this issue had been raised in his written statement and left undetermined.
He contended that rents from the "sir land" could not be recovered by the decree-holder because on sale Saheb Jan became an ex-proprietary tenant and the decree-holder could not obtain anything until rent was fixed by the Rent Court; further, he relied on a prior lease to one Din Muhammad.
He objected to the pleader's fee awarded in execution on the ground that the decree did not award it.

Respondent's (Babu Raja Ram) Position

The respondent (as reflected in the executing Court's approach and submissions recorded) treated mesne profits as including interest and pursued interest in execution despite the original decree's silence; he proceeded with execution asking for mesne profits "including interest."
He resisted any allowance for collection expenses and disputed the appellant's claims regarding sir land and the legitimacy of the Din Muhammad lease; he also maintained entitlement to pleader's fee on the sum eventually determined.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hurro Durga Chowdhrani v. Surut Sundari Debi (1881) I.L.R. 8 Cal. 332	Principle that an executing Court should not add to a decree (illustrated in a somewhat similar case).	The Court relied on this authority to support the view that the executing Court cannot add interest to a decree when the original decree either refused interest or is silent on it; adding interest would amount to adding to the decree.
Kishna Nand v. Kunwar Partab Narain (1884) L.R. 111. A. 88	Consideration of the explanation added to Section 211 (definition of mesne profits) and the discretion of the original Court on allowing interest.	The Court cited this decision as confirming that whether interest is to be allowed with mesne profits is a matter for the original Court's determination; it supports the holding that the executing Court cannot award interest when the original decree did not do so.
Altaf Ali v. Lalji Mal (1877) I.L.R. 1 All. 518	Authority relied upon to argue that a person who entered in bona fide belief of a right may be allowed collection expenses (deductions from rents received).	The appellant invoked this case to contend for collection charges; the Court considered it but found on the facts that the appellant did not enter in bona fide belief and therefore was not entitled to collection charges.
Burro (Hurro) Durga Chowdhrani v. Surut Sundari Debi (1881) I.L.R. 8 Cal. 332 (passage cited)	Passage suggesting that mesne profits are the amount received from the land after deducting collection charges.	The Court noted the passage but observed the facts of that case were not clear; it suggested the earlier case probably involved a trespasser acting under a bona fide claim, unlike the present facts, and therefore distinguished it.
McArthur and Co. v. Cornwall L.R. 1892 A.C. 75	Authority cited regarding allowance of deductions to trespassers who acted (or nearly acted) under a bona fide claim of right.	The Court treated this case as peculiar and distinguished it on facts, finding that the trespassers in McArthur were closer to bona fide claimants than the appellant in the present case, and therefore declined to follow it to allow collection expenses.
Sharaf-ud-din Khan v. Fatehyab Khan Weekly Notes 1898 p. 28 : I.L.R. 20 All. 208	Referenced in the opinion in connection with the second point (collection charges / mesne profits issue).	The opinion lists this authority for further connection to the second point; no extended discussion or direct application beyond the citation is contained in the provided text.

Court's Reasoning and Analysis

The Court's analysis proceeds issue by issue, applying statutory interpretation, evidence assessment, and authorities to the facts expressly stated in the record:

1. Interest on Mesne Profits

The Court examined the contention that the explanation to Section 211 of the Code of Civil Procedure (which defines mesne profits as including "together with interest on such profits") requires that mesne profits must include interest. The Court concluded:

The term "mesne profits" in the Code does not necessarily carry interest as an essential ingredient; while it may and ordinarily does include interest, Section 211 leaves the allowance of interest to the discretion of the Court determining the original suit.
If the original Court, upon claim of interest, either expressly refuses interest or passes a decree silent as to interest, the executing Court cannot thereafter add interest to the decree because that would amount to adding to the decree.
The Court relied on the Privy Council decision in Hurro Durga Chowdhrani v. Surut Sundari Debi and on Kishna Nand v. Kunwar Partab Narain as confirming that the question of interest is for the original Court to decide and that the executing Court should not add to the decree.
On this basis the Court held that the decree-holder is not entitled to interest upon the mesne profits awarded.

2. Expenses of Collection

The Court considered whether the judgment-debtor could reduce the rents he collected by deducting collection expenses. The appellant relied on Altaf Ali v. Lalji Mal and argued he entered possession in bona fide belief under the lease from Saheb Jan. The Court:

Examined the evidence on record (witnesses and written statements) and concluded that Abdul Ghafur was aware a decree for sale had been obtained on 4 August 1890 and that his appeal was essentially prosecuted to gain time.
Found that the appellant had "thrust himself into an estate" in defiance of another's rights rather than entering in the exercise of a bona fide claim of right.
Distinguished earlier authorities (including the passage in Hurro Durga Chowdhrani and McArthur and Co.) on their facts, which likely involved trespassers acting under bona fide claims, unlike the present facts.
Concluded that on the facts before the Court the judgment-debtor was not entitled to any deduction for expenses of collection from the rents he received.

3. Rents for Sir Land

The Court analysed the contention that upon sale Saheb Jan became an ex-proprietary tenant and that the purchaser could not obtain rents until a rent was fixed by the Rent Court. The Court observed:

The law allows for the possibility that the ex-proprietary tenant and purchaser may come to mutual terms (e.g., on or immediately after the day of sale), so recovery is not necessarily barred by the need for Rent Court fixation.
The appellant relied on an alleged prior lease by Saheb Jan to Din Muhammad; the Court found the lease clause suggested Din Muhammad was a "mere man of straw" and noted evidence (patwaris and khationis) showing Abdul Ghafur entered upon the sir land and realized rents from sub-tenants.
The appellant's offer to pay only what could have been realized from Din Muhammad was rejected by the Court, which disallowed the contention and permitted recovery of rents as claimed by the decree-holder.

4. Pleader's Fee

The Court held that the respondent is entitled to a pleader's fee in the Court below calculated upon the sum which the Court determined to be payable to him in execution.

Holding and Implications

The Court's final outcome and its immediate consequences are as follows:

Core Ruling: The appeal is allowed in part; the lower Court's decree and judgment are otherwise confirmed.

Direct effects of the decision on the parties:

The decree-holder (Babu Raja Ram) is not entitled to any sum as interest upon the mesne profits awarded by the original decree because the original decree did not grant interest and the executing Court may not add to the decree.
The appellant (Sheikh Abdul Ghafur) is entitled to deduct from the amount awarded against him by the lower Court the amount that constituted "interest on the mesne profits" as assessed by that Court (i.e., the interest portion assessed in execution is to be deducted).
In all other respects the judgment and decree of the lower Court are confirmed: the appellant is not allowed collection expenses, the respondent may recover rents in respect of the sir land as determined, and the respondent is entitled to pleader's fee on the sum determined payable to him.
Costs: Parties will receive costs in this Court and in the Court below in proportion to their success and failure in this Court.

Broader implications: The opinion underscores that allowance of interest on mesne profits is discretionary for the original trial Court and that an executing Court cannot supply or add interest where the original decree omitted it. The opinion does not purport to lay down a new binding precedent beyond applying and distinguishing earlier authorities on the facts; no novel principle superseding cited authorities is announced in the text.

This summary is based exclusively on the information contained in the provided opinion and does not add or infer facts beyond that text.

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Abdul Ghafur v. Raja Ram

1. This appeal arises out of proceedings taken in execution of a decroe passed on the 7th of December 1896 in favour of one Babu Raja Ram, respondent to this appeal. In order to understand the points which arise for determination, it will be necessary to state briefly the circumstances which gave rise to the suit in which this decree was passed. One Musammat Saheb Jan was the original owner of the property, over which between the years 1882 and 1884 she made three successive mortgages in favour of the ancestor of Raja Ram. Upon these mortgages Raja Ram obtained a decree for sale on the 4th of August 1890. After the decision had been passed, Saheb Jan, on the 7th of November 1890, executed a lease over the same property in favour of Sheikh Abdul Ghafur, the present appellant, and three days later she preferred an appeal to the High Court from the decree in favour of Raja Bam. This appeal was eventually dismissed. Upon its being dismissed, Raja Ram put the property to sale and himself purchased it. The sale was confirmed on the 20th of September 1895, and an order for delivery given seven days after. Raja Ram applied for mutation of names to be effected over the property. Abdul Ghafur resisted the application, and it was rejected. Raja Ram had therefore to sue for possession, and he did so on the 5th of September 1896, asking for further mesne profits in respect of the property, both for the time during which be had been kept out of possession and from institution of the suit until delivery of possession with interest upon the same. On the 7th of December 1896 the Court gave him a decree, which is now under execution. It is a decree for possession by which the lease given to Abdul Ghafur is to be cancelled. As regards the mesne profits, the Court added that the plaintiff is decidedly entitled to the profits from the date of his purchase, but it reserved inquiry into the amount thereof, which was to be decided in the execution department. Neither in the judgment, nor in the decree which followed, was any mention made of the interest upon mesne profits for which Babu Raja Ram had asked. On the 3rd of July 1899 Babu Raja Ram instituted proceedings in execution. He asked for mesne profits, including interest. The judgment-debtor took exception to the sum of Rs. 719-12-8 at which the plaintiff had assessed the sum he claimed as mesne profits. The objection raised by him was three-fold. He first contended that he should be allowed a proper sum for the expenses of collection incurred by him in getting in the rents. The second objection was that the decree-holder was not entitled to interest; and the third, that the decree-holder was not entitled to any sum on account of the sir lands, of which Saheb Jan had, by virtue of the decree, become an ex-proprietary tenant. He also took exception to the sum of Rs. 12-14 as pleader's fee on the ground that the decree did not award it. All these objections were overruled, and Abdul Ghafur now comes to this Court, and renews these objections. There was a further plea taken in appeal, namely the second plea, but this was expressly abandoned by the learned vakil for the appellant.

2. I deal first with the issue--"Is or is not the decree-holder entitled to interest upon the mesne profits? The contention raised by the appellant is that as this interest was in express terms claimed, but the decree gained does not award it, it must be taken to have been in the discretion of the Court refused. To this it is replied that as the question of mesne profits was left to be determined by the executing Court, that Court had the power to confirm the decree that was passed, and was bound to construe the term mesne profits as including interest. This contention is based upon what may be termed the explanation Clause to Section 211 of the Code of Civil Procedure. It is therein stated that mesne profits of property mean certain profits which are defined "together with interest on such profits." I find myself unable to hold that the term "mesne profits" in the Code of Civil Procedure necessarily carries with it as an essential ingredient interest on such profits. It may, of course, and ordinarily does, include such interest, but it seems to me that Section 211 leaves the matter in the discretion of the Court which determines the original suit. It is for that Court to say upon a consideration of the facts of the case whether any interest shall be allowed, and if allowed, at what rate it is to be allowed. If that Court in express terms refuses to grant interest, or if, when such interest is claimed, it passes a decree, the terms of which are silent as regards interest, it seems to me that in either case the Court which executes the decree, even when the amount of mesne profits is left for future inquiry, cannot add to the original decree interest which, as I consider, the original Court refused to grant. To do so would be, as was pointed out in a somewhat similar ease by their Lordships of the Privy Council in Hurro Durga Chowdhrani v. Surut Sundari Debi (1881) I.L.R. 8 Cal. 332, to add to the decree. The case Kishna Nand v. Kunwar Partab Narain, Singh also decided by their Lordships of the Privy Council (1884) L.R. 111. A. 88, confirms me in the belief that the question whether interest is or is not to be allowed in awarding mesne profits is a matter for decision of the Court which determines the original suit. In this last case the explanation added to Section 211 was expressly considered. I therefore hold that the decree-holder is not entitled to any sum as interest upon the mesne profits awarded.

3. As regards the question whether the judgment-debtor is entitled to charge the expenses of collection against the receipts which he has received from the land during the period he was in wrongful possession, I hold that he is not so entitled. The learned vakil for the appellant took his stand upon the decision of this Court, Altaf Ali v. Lalji Mal (1877) I.L.R. 1 All. 518. His contention was that Shaikh Abdul Ghafur entered upon the property with a bond fide belief that he was entitled to do so under the lease he had obtained from Musammat Saheb Jan. In any case the learned vakil argued that this issue had been expressly raised by him in his written statement, and the question whether the lease was or was not a bond fide lease had been left undetermined. Shaikh Abdul Ghafur should therefore be given an opportunity of having this issue tried before he was fined by the refusal of the Court to allow his collection charges. He was, however, prepared that it should be determined here, as the materials for the determination was upon the record, and he pointed to the evidence of Kundan, Shaman Khan and Mangli Khan, which will be found in the printed back of the appellants in First Appeal No. 39 of 1897. All that these witnesses state is that Saheb Jan executed the lease in favour of Abdul Ghafur because she had some difficulty in collecting the rent and paying the Government revenue. This is hardly to be wondered at in the year 1890, seeing that a decree for sale of the property had been obtained, and the tenants must have felt conscious that the property was about to pass out of her hands. The evidence of Kundan above quoted and that of Mehdi Hasan, to be found in the respondent's printed book, page 1, together with the written statement of Musammat Saheb Jan Bibi at page 3 of the same book, satisfies me that Abdul Ghafur must have been cognizant of the fact that the decree ordering the sale of this very property had been obtained on the 4th of August 1890, and he must also have known that the appeal, which he virtually filed on the very last day possible, was purely for the purposes of gaining time. This is a case in which he has, in defiance of the rights of another, thrust himself into an estate, and not a case where he entered upon an estate in the exercise of a bond fide claim of right. I am not prepared to allow him charges for collection. Reliance was placed upon a passage in Burro Durga Chowdhrani v. Surut Sundari Debi (1881) I.L.R. 8 Cal. 332 at page 335, in which their Lordships give an opinion that the amount which might have been received from the land deducting the collection charges were the mesne profits of the land. It does not appear what were the facts of that case, and the probability is that the trespasser there was a trespasser in the exercise of a bond fide claim of right. Reliance was also placed upon McArthur and Co. v. Cornwall L.R. 1892 A.C. 75. This case, however, is a peculiar one, and the trespassers therein mentioned had hardly passed the line of trespass in exercise of a bond fide claim. In the present case I feel satisfied that the action of Sheikh Abdul Ghafur was purposely taken either to delay or abet the delaying of the just claims of the decree-holder.

4. There remains a question whether or not the decree-holder is entitled to get any rents in respect of the sir land. Here the argument is that as soon as the sale took place Musammat Saheh Jan Bibi became by prooess of law ex-proprietary tenant of all the sir land held by her at the time when her property passed out of her possession. The decree-holder could not obtain anything from Musammat Saheb Jan Bibi until he at first got a rent fixed by the Rent Court. That being the case nothing could be obtained in respect of these lands. This contention overlooks the possibility which the law also allows of Musammat Saheb Jan Bibi and the purchaser coming to terms by mutual agreement, that is to say, upon the day of or the day after the sale. But it is added that as Mus8ammat Saheb Jan had, prior to the lease in favour of Sheikh Abdul Ghafur, leased all sir lands to one Din Muhammad, Sheikh Abdul Ghafur could recover nothing. The lease itself refutes this contention. The Clause relating to the so-called lease to Din Muhammad confirms me in the view that Din Muhammad was a mere man of straw. Abdul Ghafur in fact entered upon this sir and realized rents from the sub-tenants, as is abundantly proved by the evidence of the patwaris and khationis. The learned vakil for the appellant said in the course of his argument that he did not object to pay what his client could have realized from Din Muhammad. This contention appears to me to be entitled to no favour, and I disallow it.

5. There remains the last item on account of the pleader's fee. On this I hold that the respondent is entitled to pleader's fee in the Court below upon the sum which I now determine to be the sum payable to him.

6. The result is that this appeal is so far allowed that the appellant is entitled to deduct from the sum awarded against him by the lower Court the amount assessed as interest on the mesne profits. In other respects, the judgment and decree of the lower Court are confirmed. Parties, will get costs in this Court and the Court below in proportion to their success and failure in this Court.

[See also in connection with the second point in the case Sharaf-ud-din Khan v. Fatehyab Khan Weekly Notes 1898 p. 28 : I.L.R. 20 All. 208.--ED.]

Abdul Ghafur v. Raja Ram

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Sheikh Abdul Ghafur) Arguments

Respondent's (Babu Raja Ram) Position

Table of Precedents Cited

Court's Reasoning and Analysis

1. Interest on Mesne Profits

2. Expenses of Collection

3. Rents for Sir Land

4. Pleader's Fee

Holding and Implications

Abdul Ghafur v. Raja Ram

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