Babu Chandrika Prasad Singh vs Maharaja Kesho Prasad Singh

In this case the judgment-debtor, by litigation terminated by a decree of the High Court of Calcutta in 1904, became indebted to the Dumraon Raj in two sums representing the cost of the litigation, namely, Rs. 502 the cost of the High Court, and Rs. 451 the cost of the Subordinate Judge''s Court, and in addition to these to an unascertained sum to cover mesne profits pending the period of the trespass to remedy which the litigation was directed. The question of mesne profits was taken up in the Subordinate Judge''s Court, in accordance with the directions of the High Court. A compromise petition was filed, in which it was abated that the mesne profits should be taken to be Rs. 1,320 and that the decrees made by the High Court and by the Subordinate Judge far costs should not bear interest. The then decree-holder,,; the Maharani of Dumraon, took various steps in execution of this compromise decree. She died in December 1907. She was succeeded temporarily by a son, '' whom it was alleged she had adopted. Litigation followed and on the 18th September 1911 the present Maharajah of Dumraon obtained possession of the estate. The present application for execution of the decree was made on the 14th April 1917 and was preceded by an application made on the 3rd August 1914 and disposed of on the 28th April 1915. That again was preceded by an application made on the 3rd July 1911 and disposed of on the 15th September 1914. It is conceded that if the application of the 3rd July I911 was a genuine step taken in aid of execution, the present proceedings are not barred by the three years'' rule. It is, however, contended that they are barred by the twelve years'' rule.

The ground upon which it is urged that the application of the 3rd July 1911. was not a genuine step taken in aid of execution is that this step was taken by the alleged adopted son, who was in possession of the estate under the Court of Wards from 1907 to 1911. We are of opinion that the question of the right'' of a trespasser to execute a decree obtained on behalf of the estate will depend largely upon the nature of the decree and of the objections taken by the judgment-debtor to the proceedings instituted by the trespasser. The Court of Wards took possession of the estate immediately after the Maharani''s death and was in possession of it for four years. If the contention of the judgment-debtor be sound that any steps taken by the Court of Wards to execute the decree due to the estate during this period were not genuine steps taken in aid of execution but were steps invalid by reason of the fact that they were taken by a trespasser, ''then the whole of the decrees due to the estate prior to the year 1907 would have been wiped off by the trespass. We are of opinion that where a decree is due to an estate, the pardon who for the time being is recognised as the proprietor of the estate is the proper person to execute the decree due to the estate and that in this case the Court of Wards was a representative of the estate, the proper person to take out execution. This was acknowledged by the judgment-debtor himself in proceedings beginning on the 10th July 1908 and terminating on the 10th February 1911. He allowed payment orders for Rs. 51 and Rs. 600 to be given to the Court of Wards on behalf of the trespasser. It is not open to him to say now that these proceedings were not genuinely taken-in aid of the execution. Nor is it open to him to say that the ''debt due upon this decree was not a debt due to the estate but a personal debt of the Maharani, for we find him allowing in 1911 these payments to be made to the ward who was the adopted son, not of the Rani but of her husband, the late Maharajah. The objection, therefore, that the whole decree is barred by limitation by reason of the three years'' rule cannot be sustained.

The objection as regards the decrees for costs under the twelve years'' rule must be upheld. It is strenuously urged by Mr. Nirsu Narain Sinha that the compromise decree was substituted for the original decrees for costs. In the first place the Subordinate Judge had no jurisdiction to accept any compromise decree in substitution for the decree either of the High Court or of its own Court previously passed. All that the compromise decree could do with regard to the decrees for costs was to limit the manner of their execution. The compromise decree is not a new decree for costs but merely an embodiment in a document of an agreement to execute these decrees in a particular way. The debts under the decrees remained untouched. These debts were both prior to 1904 and the decrees for costs were, therefore, barred by the twelve years'' rule of limitation in 1917. The decree for mesne profits stands on a different footing. We have seen the judgment of the High Court of Calcutta and note that specific directions were given to the Subordinate Judge to ascertain the mesne profits in the course of the execution proceedings. The compromise decree, therefore, was the first valid ascertainment of the mesne profits and as this the only decree for mesne profits, bears date 1907 it is not barred. The sums paid, amounting in all to Rs. 651, may equitably be debited to the decrees for costs. The decree for costs was prior to the decree for mesne profits and it is an equitable rule that in allocating payment to a number of debts, the debts should be satisfied in order of priority. The result, therefore, is that the decree-holder is entitled to bring the property in suit to sale in execution of that part of the compromise decree which has reference to the mesne profits. In the circumstances of the case we make no order as to costs in this Court or of the Court below.

Jwala Prasad, J.

I agree to the order made in this case.