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PETITIONER:

CHITTURI SUBBANNA

Vs.

RESPONDENT:

KUDAPA SUBBANNA & OTHERS

DATE OF JUDGMENT:

18/12/1964

BENCH:

DAYAL, RAGHUBAR

BENCH:

DAYAL, RAGHUBAR

MUDHOLKAR, J.R.

SIKRI, S.M.

CITATION:

1965 AIR 1325 1965 SCR (2) 661

CITATOR INFO :

R 1979 SC1214 (21,26)

D 1984 SC1696 (14)

ACT:

Code of Civil Procedure (Act 5 of 1908), O. XX. r. 12-

Preliminary decree not in accordance with rule-Not appealed

against-Effect.

Practice and Procedure-Point of law-Raised for the first

time at hearing of appeal-If permissible.

HEADNOTE:

In a suit for possession and mesne profits the High Court

gave a direction in the preliminary decree that the trial

court should make an enquiry into the mesne profits payable

by the appellant (judgment debtor), from the date of the

institution of the suit, and pass a final decree for payment

of the amount found due up to the date of delivery of

possession of the properties to the respondent (decree

holder). The trial court appointed a Commissioner for

making the enquiry, and after considering his report, passed

a final decree for a certain amount. No objection was taken

by the appellant, either before the Commissioner or the

trial court that accounts could be taken under O. XX r. 12

Civil Procedure Code, only for 3 year from the date of the

preliminary decree and not till the later date when

possession was delivered to the respondent. In his appeal

to the High Court also, the appellant did not raise the

ground in the memorandum of appeal, but when the appeal was

argued he sought to raise the contention. The High Court

did not allow him to do so and dismissed the appeal. Along

with the appeal the High Court dealt with the cross

objections preferred by the respondent in which he claimed

enhancement of the amount of mesne profits and partially

allowed the cross objections. In the appeal to the Supreme

Court it was contended that (i) the High Court was in error

in not allowing the appellant to raise the objection based

on O.XX, r. 12 of the Code, (ii) the respondent was not

entitled to be granted mesne profits for a period beyond

three years from the date of the preliminary decree and

(iii) the High Court was in error in enhancing the amount of

mesne profits.

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HELD (Per Raghubar Dayal and Sikri, JJ.) : (i) The High

Court was in error in not allowing the appellant to urge the

additional ground before it. [669 B-C]

It was a pure question of law not dependent on the

determination of any question of the fact and such questions

are allowed to be raised for the first time even at later

stages. Even though the High Court has discretion to allow

or refuse an application for raising an additional ground,

the order refusing permission could be interfered with by

the Supreme Court, because, it was not in conformity with

the principle that a question of pure law can be urged at

any stage of a litigation. [664 H; 666D-F-G]

There was no question of the appellant conceding before the

Commissioner or electing before the trial court that mesne

profits could be calculated till the date of delivery of

possession when no dispute about the matter had arisen

between the parties. [666 H]

Further, the respondent could not have been prejudiced by

the appellant raising the new ground at the hearing of the

appeal and not earlier,

662

for, even if the appellant had raised it before the

Commissioner the respondent could not have sued for mesne

profits beyond three years, as, by that time, the period of

limitation for such a suit had expired. [669 A-B]

(ii) A decree under O.X.X., r. 12 of the Code, directing

enquiry into mesne profits, however expressed, must be

construed to be a decree directing the -enquiry in

conformity with the requirements of r. 12(1) (c), and so the

respondent would not be entitled to mesne profits beyond a

period of three years from the date of the preliminary

decree. [676 A-B]

It is open to the court to construe the direction in

accordance with the provisions of the rule when such

direction is not fully expressed so as to cover all the

alternatives mentioned therein. [673 F]

The direction in the preliminary decree could not have been

appealed against because, the question about the proper

period for which mesne profits was to be decreed really

comes up for decision at the time of passing the final

decree, by which time, the parties would be in a position to

know the exact period for which future mesne profits could

be decreed-. and so, the appeal could be filed only after a

final decree is passed and s. 97 of the Code would be

inapplicable. Nor would the direction in the preliminary

decree operate as res judicata either under s. 11 of the

Code or on general principles, because there was no

controversy between the parties. [674 A; E-H]

Instead of insisting that the court should repeat in the

judgment the various alternatives mentioned in the rule, it

would be preferable to construe the judgment in accordance

with those provisions, and so construed, there is no

possibility of a decree holder gaining by his own default.

[675DE, G.]

Case law reviewed.

Per Mudholkar, J. (Dissenting) : (i) The High Court was

right in refusing leave to the appellant to raise a new

ground at the hearing since not only had be not raised it in

the memorandum of appeal but he had also allowed an enquiry

into mesne profits by the Commissioner for a period longer

than 3 years from the date of the decree and participated

therein. [683 G]

Further, the grant or refusal of permission was within the

discretion of the High Court and the High Court had given

very good and cogent reasons for refusing permission. [684

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D-E]

When a party omits to raise an objection to a direction

given by a lower court in its judgment, he must be deemed to

have waived his right and cannot, for the first time at the

hearing of an appeal from that decision challenge the

courts' power to give the direction. The proper function of

an appellate court is to, correct an error in the judgment

or proceedings of the court below and not to adjudicate upon

a different kind of dispute a dispute that had been never

taken before the court below. It is only in exceptional

cases that the appellate court may, in its discretion allow

a new point to be raised before it, provided there are good

grounds for allowing it to be raised and no prejudice is

caused to the opponent. [686G; 688 E-G]

Case law considered.

(ii) On the merits of the contention, even assuming that the

direction in the preliminary decree was wrong, that decision

has to be given -effect to as it was not challenged in

appeal and therefore had become final under s. 97 of the

Code. Unless it is corrected in the manner provided in the

Code, it will operate as res judicata between the parties in

all subse-quent stages of the lis. [689 D-E; 692 B]

663

It may be that where the meaning of a term is not clear or

is ambiguous, the question of construing it may arise and

the court would be doing the right thing in placing upon it

a construction conformable to law. But the direction in the

instant case did not suffer from vagueness, ambiguity or

such incompleteness as well make its enforcement impossible.

[691 B-C]

(iii) (By Full Court) : The High Court had raised the

rates of mesne profits without expressing its reasons for

holding that the Subordinate Judge was wrong in his

findings. The case should therefore be remanded to the High

Court and the quantum of mesne profits determined afresh,

but, oniy up to three years from the date of the preliminary

decree according to the majority judgment. [676 E; 681 F;

692 E]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 598 of 1961.

Appeal from the judgment and decree dated September 13,

1958, of the Andhra Pradesh High Court in Appeal Suit No.

736 of 1952.

A. V. Viswanatha Sastri, K. Rajindra Chaudhuri and K. R.

Chaudhuri, for the appellant.

K. Bhimasankaram, K. N. Rajagopala Sastri and T.

Satyanarayana, for respondent No. 1.

The Judgment of Raghubar Dayal and Sikri JJ. was delivered

by Raghubar Dayal J. Mudholkar J. delivered a dissenting

Opinion.

Raghubar Dayal, J.-This appeal, presented on a certificate

granted by the High Court of Andhra Pradesh, arises out of

execution proceedings in execution of a decree dated March

7, 1938. Kudapa Subbanna, plaintiff No. 2 and respondent

No. 1 here, was held entitled to the properties mentioned in

Schedules A and C and to 1/24ths share in the properties

mentioned in Schedule B attached to the plaint. The

defendants in possession of the properties were directed to

deliver possession to the decree-holder. The properties in

Schedule B were first to be divided in accordance with the

shares specified in para 9 of the plaint and the decree-

holder was to be allowed the share to which the first

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plaintiff was shown to be entitled. The trial Court was

directed to make an enquiry into the mesne profits from the

date of the institution of the suit and pass a final decree

for payment of the amount that be found due up to the date

of delivery of possession to the second plaintiff.

Possession over the properties in Schedules A and C was

delivered to the decree-holder on February 17, 18 and 20,

1943. On June 23, 1945, the decree-holder filed I.A 558 of

1949 to revive and continue the earlier I.A. 429 of 1940

which had been presented for the ascertainment of future

profits and was struck off on September 25, 1944. On July

28, 1948, the Subordinate Judge

664

decreed the mesne profits and interest thereon for the

period from 1926-27 to 1942-43 with respect to the A and C

schedule properties. The amount decreed was Rs. 17,883-8-3

including Rs. 10,790/- for mesne profits. He also decreed

mesne profits with respect to the B-schedule properties upto

1946. They are not in dispute now.

On April 22, 1949, Chitturi Subbanna, 1st defendant,

appealed to the High Court. The decree-holder filed cross-

objections and claimed Rs. 19,000/- more stating that the

amount of mesne profits actually due to him would be about

Rs. 45,0001- but he confined his claim to Rs. 19,000/- only.

On September 13, 1958, the High Court dismissed the appeal,

but allowed the cross-objection, the result of which was

that the amount of mesne profits decreed by the Subordinate

Judge with respect to the A and C schedule properties was

increased very substantially. The amount decreed for mesne

profits was raised to Rs. 17,242-12-0 and, consequently, the

amount of interest also increased. Chitturi Subbanna then

obtained leave from the High Court to appeal to this Court

as the decree of the High Court was one of variance and the

value of the subject matter in dispute was over Rs.

10,000/-.

Chitturi Subbanna, appellant, applied to the High Court for

permission to raise an additional ground of appeal to the

effect that the trial Court was not entitled to grant mesne

profits for more than 3 years from the date of the decree of

the High Court. The High Court disallowed that prayer for

the reasons that he had not taken such a ground in the

memorandum of appeal and had, on the other hand, conceded

before the Commissioner and the trial Court that accounts

could be taken upto 1943 in respect of A and C schedule

properties, that he had elected to have the profits deter-

mined by the trial Court upto the date of delivery of

possession and that if he had taken the objection earlier,

it would have been open to the second plaintiff-respondent

to file a suit for the recovery of mesne profits beyond the

three years upto the date of deli- G very of possession. It

is urged before us for the appellant that the High Court was

in error in not allowing the appellant to have raised the

objection based on the provisions of O .20, r. 12, C.P.C. We

agree with this contention. The question sought to be

raised was a pure question of law and was not dependent on

the determination of any question of fact. The first

appellate Court ought to have allowed it. Such pure

questions of law are allowed for the first time at later

stages too.

665

The appellant could not have claimed-and did not claim a

right to urge the new point which had not been taken in the

grounds of appeal. He made a separate application for

permission to take up that point. The procedure followed

was in full conformity with what had been suggested in

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Wilson v. United Counties Bank, Ltd. (1) to the effect :

"If in exceptional cases parties desire to add

new grounds to those of which they have given

notice, it will usually be convenient, by a

substantive application, to apply to the

indulgence of the Court which is to hear the

appeal."

In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari(2)

this Court allowed a question of law to be raised at the

hearing of the appeal even though no reference to it had

been made in the Courts below or in the grounds of appeal to

this Court. This Court said :

"If the facts proved and found as established

are sufficient to make out a case of fraud

within the meaning of section 18, this

objection may not be serious, as the question

of the applicability of the section will be

only a question of law and such a question

could be raised at any stage of the case and

also in the final court of appeal. The

following observations of Lord Watson in Con-

necticut Fire Insurance Co. v. Kavanagh

([1892] A.C. 473) are relevant. He said :

'When a question of law is raised for the

first time in a court of last resort upon the

construction of a document or upon facts

either admitted or proved beyond controversy,

it is not only competent but expedient in the

interests of justice to entertain the plea.

The expediency of adopting that course may be

doubted when the plea cannot be disposed of

without deciding nice questions of fact in

considering which the court of ultimate review

is placed in a much less advantageous position

than the courts below."

Again, it was said in M. K. Ranganathan v. Government of

Madras (3) :

"The High Court had allowed the Respondent 3

to raise the question even at that late stage

inasmuch as it was a pure question of law and

the learned Solicitor-

(1) L.R. [1920] A.C. 102,106.

(2) [1950] S.C.R. 852.

(3) (1955) 11 S.C.R. 374, 381.

666

General therefore rightly did not press the

first contention before us."

In Ittyavira Mathai v. Varkey Varkey(1) this Court did not

allow the question of limitation to be raised in this Court

as it was considered to be not a pure question of law but a

mixed question of law and fact. This Court said at p. 911 :

"Moreover, the appellants could well have

raised the question of limitation in the High

Court in support of the decree which had been

passed in their favour by the trial Court.

Had they done so, the High Court would have

looked into the records before it for

satisfying itself whether the suit was within

time or not. The point now raised before us

is not one purely of law but a mixed question

of fact and law. No specific ground has even

been taken in the petition made by the

appellant before the High Court for grant of a

certificate on the ground that the suit was

barred by time. In the circumstances, we

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decline leave to the appellant to raise the

point of limitation before us."

The High Court had discretion to allow the application or to

refuse it. The discretion exercised by the High Court is

certainly not to be interfered with by this Court except for

good reasons.

We shall deal with the reasons given by the High Court for

in rejecting the application and, in so doing, indicate why

we consider those reasons not to be good reasons for

disallowing the prayer made in the application.

In Rehmat-un-Nissa Begam v. Price(2) the observations at

p.66 indicate that a discretionary order can be justifiably

disturbed if the Court acts capriciously or in disregard

of any legal principle in the exercise of its

discretion. This, however, cannot be taken to be exhaustive

of the grounds on which the discretionary order is to be

interfered with. In this particular case the order passed

by the High Court was not in conformity with the principle

that a question of pure law can be urged at any stage of the

litigation, be it in the court of the last resort.

There was no question of the appellant's conceding before

the Commissioner that mesne profits could be legally allowed

up to the date of delivery of possession. No party had

raised the question as to whether mesne profits could be

allowed up to three years

(1) A.I.R.1964 S.C. 907.

(2) L.R. 45 I.A. 61.

667

subsequent to the -date of the High Court decree or up to

the later date when possession was delivered. When no such

dispute arose, there was no question of the appellant's

making any such concession. Similarly, no question of the

appellant's electing to have the profits determined by the

trial Court up to the date of delivery of possession could

have arisen when no dispute about this matter had arisen

between the parties. The utmost that can be said is that

both the parties, the decree-holder and the judgment-debtor,

were under the impression that mesne profits could be

awarded till the date of delivery of possession as directed

by the decree of the High Court. The fact that -the

appellant raised no such objection before the Commissioner

or the trial Court, does not mean that he had given his

consent for the determination of mesne profits for the

period subsequent to the expiry of 3 years from the date of

the High Court decree and that the order of the trial Court

for the payment of mesne profits up to the date of delivery

of possession is an order based on the consent of the

parties.

In the circumstances of the case, we are not prepared to

hold that the omission of the appellant to raise the point

before the trial Court amounts to his waiving his right to

raise the objection on the basis of O.20, r. 12, C.P.C.

The case reported as London, Chatham and Dover Railway Co.

v. South-Eastern Railway Co.(1) is not to the point. The

facts of that case were different. An agreement between two

railway companies under the authority of an Act of

Parliament contained a provision that all matters in

difference between them would be referred to arbitration

under the Railway Companies Arbitration Act (22 & 23 Vict.

c. 59). Section 26 of that Act provided that full effect

should be given by all the superior Courts of law and equity

in the United Kingdom, according to their respective juris-

diction.... to all agreements, references, arbitrations and

awards, in accordance with the Act. This provision was

construed not to oust the jurisdiction of the ordinary

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Courts, but in case of any party insisting on the compliance

of the condition in the agreement of disputes being referred

to arbitration, the Court was to stay its hands and to order

the case to be withdrawn from the Court. The case was

decided by the Court when an appeal against the finding that

the agreement was valid was pending before the House of

Lords. It is not clear and may, however, be assumed that

one of the questions in the appeal was whether the jurisdic-

tion of the Court was ousted if the agreement be a good one.

The

(1) L.R. (1889) 40 Ch.D. 100.

668

House of Lords and the Court of Appeal did not decide that

point as it is noted at p. 101 :

"but their Lordships expressly stated that the

judgment of the House of Lords, and also the

judgment of the Court of Appeal, only decided

that the High Court of Justice had

jurisdiction to try the question of the

validity of the agreement, and did not decide

the question whether the matters in dispute

arising under the agreement ought to be tried

by arbitration."

One of the parties applied to the -Court to postpone the

trial of the action on the ground that certain points other

than the point regarding the ouster of jurisdiction of the

Court were before the House of Lords for decision. The

prayer was rejected. The parties went on with the trial of

this action and got a judgment of the Court upon the

evidence on the matter in dispute between them. It was

urged in the Court of Appeal that the Court had no

jurisdiction to try that matter and that it could be

determined only in arbitration. The Court of Appeal said

that the Court was not deprived of its jurisdiction to

determine the matters in dispute if neither party insisted

on arbitration and that the parties ought not to be allowed

to raise the point of jurisdiction. The reason given by

Cotton, L.J., Lit p. 105, is stated thus

"If when they can insist on the Court not

going into the merits of the case and deciding

questions between the parties, they abstain

from doing so, and are defeated on the

merits'. in my opinion it is too late to

insist before the Court of Appeal on any right

to object to the jurisdiction of the Court

which they might have had if they had insisted

on it in a proper way and at a proper time."

In the present case the appellant did not let the trial

Court determine the question of the period up to which

mesne, profits could be decreed, as he had raised no

controversy in this respect. He did not take a chance of

the judgment being given one way or the other and therefore

the attempt of the appellant to raise the question in the

High Court was not to get round the judgment of the Court

which happened to go against him.

The Commissioner conducted the enquiry about mesne profits

from August 29, 1946 till December 4, 1947. Suits for mesne

profits for the periods between March 7, 1941 and February

28, 1943 could not be instituted in August 1946 as the

period of 3 years' limitation for the institution of a suit

for mesne profits of those years had expired by then. It

follows that even if the appel-

669

lant had raised the objection that mesne profits could not

be decreed for the period subsequent to March 7, 1941, the

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decree holder respondent could not have sued in Court for

the recovery of those mesne profits when he had failed to

sue for them within the specified period of limitation and

therefore could not have been prejudiced by the appellant's

raising the new ground at the hearing of the appeal.

We are therefore of opinion that the High Court was in error

in not allowing the appellant to urge this additional ground

before it.

The main point for determination in this appeal is whether

mesne profits could be awarded to the decree-holder for a

period subsequent to the expiry of three years from the date

of the High Court's decree, i.e., subsequent to March 7,

1941. The contention for the judgment-debtor is that mesne

profits cannot be awarded for the period subsequent to March

7, 1941 in. view of the provisions of Order 20, r. 12,

C.P.C. which reads

"12. (1) Where a suit is for the recovery of

possession of immovable property and for rent

or mesne profits, the Court may pass a decree-

(a) for the possession of the property;

(b) for the rent or mesne profits which have

accrued

on the property during a period prior to the

institution of the suit or directing an

inquiry as to such rent or mesne profits;

(c) directing an inquiry as to rent or mesne

profits from the institution of the suit

until-

(i) the delivery of possession to the

decree-holder,

(ii) the relinquishment of possession by the

judgment debtor with notice to the decree-

holder through the Court, or

(iii) the expiration of three years from the

date of the decree, whichever event first

occurs.

(2) Where an inquiry is directed under

clause (b) or clause (c), a final decree in

respect of the rent or mesne profits shall be

passed in accordance with the result of such

inquiry."

It is urged that the direction in the decree for an inquiry

into the mesne profits up to the date of delivery of

possessions should be L4Sup.165-9

670

construed to mean a direction for an inquiry into the mesne

profits up to the date of delivery of possession or up to

three years from the date of the decree, whichever be

earlier, as that would be consistent with what the law

provides. In support of the contention, reference has been

made to Girish Chunder Lahiri v. Shoshi Shikhareswar Roy(1)

and to other cases which followed that decision. The

contention for the decree-holder is that the preliminary

decree directed the enquiry into the mesne profits from the

date of the institution of the suit up to the date of

delivery of possession and that this direction in the decree

cannot be ignored, when inquiring into the mesne profits or

when passing the final decree, even if it be not in full

conformity with the law laid down in r. 12 of O. 20. It has

also been urged that the judgment-debtor is estopped from

raising the contention that he is not liable to pay mesne

profits subsequent to March 7, 1938 in view of his conduct

amounting to his consent in the award of mesne profits

subsequent to March 7, 1938. We have already held that the

appellant's conduct did not amount to his consenting to

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mesne profits being decreed for the period subsequent to

March 7, 1941.

There is no provision of law other than the provision of r.

12, O.20, C.P.C. which empowers the Court to decree mesne

profits subsequent to the institution of a suit for the

recovery of possession of immovable property and mesne

profits. It is not disputed for the respondent decree-

holder that r. 12, O.20, does not empower a Court to direct

an inquiry and pass a final decree with respect to mesne

profits for a period exceeding 3 years from the date of the

decree. This is very clear from the language of this rule.

The only question is whether a decree wherein the Court does

not mention the period for which mesne profits would be paid

or the Court states that mesne profits would be payable up

to the delivery of possession, should be construed to be a

decree directing that mesne profits would be decreed for a

period of 3 years from the date of the decree, if possession

be not delivered within that period. The precedent case law

is in favour of the contention for the appellant. The ratio

decidendi mainly is that the Court had no power to pass a

decree against the clear provisions of r. 12, O.20, and that

therefore the decree should be so construed as to be in

accordance with these provisions.

The law with respect to the decree for mesne profits had

been changing from time to time, but all the same the

expressions in the decree about the period for which mesne

profits were to be

(1) L.R. 27 1.A. 110.

671

awarded have been considered to be matters of construction

and had been construed in accordance with the law at the

relevant time.

Sections 196 and 197 of the Code of Civil Procedure of 1859

(Act VIII of 1859) dealt with the decree for mesne profits.

Section 196 provided that when the suit was for land or

other property paying rent, the Court might provide in the

decree for the payment of mesne profits or rent on such land

or other property from the date of the suit until the date

of delivery of possession to the decree-holder, with

interest thereon at such rate as the Court may think proper.

It is to be seen that the Court was not merely to direct an

enquiry about mesne profits and then to pass a decree as the

present provisions require and that there was no limitation

about decreeing mesne profits for a period of 3 years only

from the date of the decree. Mesne profits could be decreed

up to the delivery of possession. The decree was for mesne

profits which were 'Lo be determined in execution.

In Fakharuddin Mahomed Ahsan Chowdhry v. Official Trustee of

Bengal(1) the High Court decree declared the plaintiff to be

entitled to possession of the land mentioned in the

kabinnama with wasilat from the commencement of Srabun 1267

and did not say in express terms the time up to which the

wasilat were to be paid. The plaint was also not very clear

in stating the time up to which wasilat were claimed. The

Privy Council construed the decree to award mesne profits up

to the delivery of possession as the reasonable construction

would be that the Court, with a view to carrying out the

object of the legislature, viz., the prevention of

unnecessary litigation and multiplication of suits, intended

to give, with possession, that wasilat which was by law

claimable up to the time of possession.

Section 211 of the Code of Civil Procedure, 1882 (Act XIV of

1882) provided for decreeing the mesne profits up to

delivery of possession or up to 3 years after the decree,

whichever event took place earlier. The change of law

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therefore restricted the power of the Court to grant mesne

profits to a period up to 3 years from the date of the

decree. In Girish Chunder's Case(2) the Privy Council had

to consider a decree for mesne profits which was passed when

s. 211 was in force. The decree in that case, which went up

to the Privy Council, was passed in 1883 and had provided

that the decree holder would get mesne profits for the

period of dispossession. Possession over the village N was

not recovered till 1892. The trial Court allowed mesne

profits with respect to that village

(1) L.R. I I.A.197.

(2) L.R. 27 I.A. 110.

672

up to the date of delivery of possession. The High Court

did not agree and allowed mesne profits for only 3 years

after the date of the decree. It was said at p. 126 :

"As to the village of N, their Lordships agree

with the High Court. The Subordinate Judge

gives the plaintiff mesne profits up to the

date of possession. But that is more than

three years from the date of the decree, and

to the extent of the excess is unauthorised by

s. 211 of the Code."

The principle enunciated in this case about the construction

of the decree for mesne profits for the period of

dispossession was followed subsequently by the various High

Courts on the ground that the Court had no power to award

mesne profits for a period beyond three years from the date

of the decree and that therefore the decree should be

construed to be subject to the condition that if possession

is not delivered within three years of the decree, the mesne

profits would be awarded for the period of three years from

the date of the decree. These views were expressed in

connection with decrees which either did not specify any

period for the payment of mesne profits or expressly stated

that mesne profits would be payable only until delivery of

possession.

In Venkata Kumara v. Subbayamma(1), Uttamram v. Kishordas (

2 ) and Trailokya v. Jogendra(3) the decree simply mentioned

the starting point of the period for which mesne profits

were decreed or for which an enquiry about them was to be

made. It may be said, as urged for the respondent, that it

was open to the Courts to construe the decree when the

actual language of the decree did not indicate the other

terminus of the period for which mesne profits could be

claimed. It was however not so in Girish Chunder's Case(4)

where the decree provided that the decree holder would get

mesne profits for the period of dispossession. Similarly in

Godayarti Raja v. Ramachandraswami(5), Narayan v. Sono(6),

Kunwar Jagdish Chandra v. Bulaqi Das (7 ) and Kanai Lal v.

Shvam Kishore(8) the decree allowed mesne profits for the

period of dispossession. It cannot be said that the decree

in these cases was in any way vague or incomplete in the

sense that its meaning was not clear. Yet in all these

cases the Courts construed the decree in a manner as would

make it in accordance with the law as laid down in r. 12,

O.20, C.P.C.

(1) A.I.R. 1953 Mad. 226, (2) I.L.R. 24 Bom. 149.

(3) I.L.R. 35 Col. 1017. (4) L.R. 27 1 A 110.

(5) A.1,R. 1943 Mad. 354. (6) I.L.R. 24 Bom. 345.

(7) I.L.R. [1959] 1 All. 114.(8) I.L.R. 1959 Cal. 76.

673

The decrees have been so construed not on account of the

vagueness of the expressions used for decreeing mesne

profits or directing the inquiry about mesne profits but on

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account of the fact that the decree for future mesne profits

or directing enquiry about them is not based on the decision

of any controversy between the parties but is made in the

exercise of the discretionary power vested in the Courts by

the provisions of O.20, r. 12 (1 ) (c), C.P.C. The Court is

deemed to exercise the power in accordance with law and

therefore a decree which decrees or directs enquiry about

mesne profits for the period of dispossession or until

delivery of possession is construed as a decree for mesne

profits for a period of three years from the date of the

decree if possession is not delivered within that period.

This power was given to the Court in order to avoid

multiplicity of suits between the decree-holder and the

judgment-debtor for mesne profits which the decree-holder

could rightly claim. The period was, however, restricted to

three years in order to discourage decree-holders from

making delays in taking possession. If a decree-holder be

not diligent in executing the decree, he would have to

forego mesne profits for the period in excess of three years

or would have to institute separate suits to recover them.

The Privy Council did not pass its order in Girish Chund-

Case(1) on the basis of the decree being vague or incom-

plete. It simply held that the decree for a period in

excess of three years was not authorized by s. 21 1 of the

Code of Civil Procedure of 1882.

We are therefore of opinion that it is open to the Court to

construe the direction in the preliminary decree about the

inquiry with respect to future mesne profits when such

direction is not so fully expressed as to cover all the

alternatives mentioned in O 20, r. 12 (1) (c), C.P.C. and to

hold that the decree be construed in accordance with those

provisions.

It is urged for the decree-holde respondent that the trial

Court, when passing the final decree, could not have ignored

what had been decreed under the preliminary decree as no

appeal against the preliminary decree had been preferred and

s. 97, C.P.C., provided that where any party aggrieved by a

preliminary decree passed after the commencement of the Code

did not appeal from such decree, it would be precluded from

disputing its correctness in any appeal which might be

preferred from the final decre. The object of s. 97 is that

questions which had been urged by the parties and decided by

the Court at the stage of the preliminary decree will not be

open for re-agitation at the stage of the preparation of the

final

(1) L.R. 27 I.A. 110.

67 4

decree and would be taken as finally decided if no appeal

had been preferred against the preliminary decree. The

provisions of this section appear to be inapplicable to the

present case.

The preliminary decree directed an inquiry about the mesne

profits from the date of the institution of the suit up to

the date of delivery of possession to the decree-holder.

The decree-holder could not have felt aggrieved against this

order. The judgment debtor could not have insisted for

detailing all the various alternatives mentioned in O.20, r.

12(1) (c) and he could not have expected that possession

would not be taken within three years of the decree. The

direction about the enquiry with respect to future mesne

profits does not amount to an adjudication and certainly

does not amount to an adjudication of any controversy

between the parties in the suit. It has no reference to any

cause of action which had arisen in favour of the plaintiff-

decree holder before the institution of the suit. The

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direction was given on account of a special power given to

the Court under O.20, r. 12(1) (c) of the Code to make such

a direction if it considered it fit to do so. It was within

the discretion of the Court to make the direction or not.

The Court does not decide, when making such a direction, the

period for which the decree-holder would be entitled to get

mesne profits. No such point can be raised before it. The

judgment debtoes liability to mesne profit's arose under the

ordinary law and a suit for realizing mesne profits could be

separately filed, by the decreeholder. The provisions of

O.20, r. 12(1)(c), are just to avoid multiplicity of suits

with consequent harassment to the parties. The mere fact

that the direction for an enquiry into mesne profits is

contained in a preliminary decree does not make it such a

part of 'the decree against which alone appeal could have

been filed. The appeal could be filed only after a final

decree is passed decreeing certain amount for mesne profits

to the decree-bolder. It follows that the question about

the proper period for which mesne profits was to be decreed

really comes up for decision at the time of passing the

final decree by which time the parties in the suit would be

in a position to know the exact period for which future

mesne profits could be decreed in view of the provisions of

O.20, r. 12(1) (c).

The direction in the preliminary decree cannot operate, in

terms of s. 1 1 C.P.C. or on general principles, as res

judicata for the simple reason, as stated earlier, that the

direction is not based on the decision of any matter in

controversy between the parties and is given in the exercise

of the power vested in the Court under O.20, r. 12 (1 ) (c).

Again, for similar reasons, the principle that a Court can

decide a question within its jurisdiction wrongly as well

67 5

as rightly and, if the decision said to be wrong had become

final, the Courts have to respect it, will not apply to

these cases.

We therefore hold that the judgment-debtor appellant is not

precluded from contending that mesne profits could not be

awarded for a period exceeding three years from the date of

the decree.

We may now consider the question from another aspect. Rule

12, O.20, C.P.C. requires the Court to direct, at the time

of passing the preliminary decree, an inquiry as to mesne

profits from the institution of the suit until the actual

delivery of possession of the property to the decree-holder

or until the expiration of three years from the date of the

decree whichever event first occurs. The Court at the time

of the passing of the decree is not in a position to say

which of the three events mentioned in cl. (c) of sub-r. (1)

of r. 12 will determine the period for which mesne profits

would be payable to the decree-holder Either, therefore,

the Court has to repeat the various alternatives mentioned

in this clause in the judgment and the decree which is to

follow the judgment or the judgment and the decree for mesne

profits is to be construed in accordance with these

provisions. It is preferable to construe it in this way

rather than to insist that the Court should mechanically

repeat in the judgment and decree the various provisions of

cl. (c). It may sometimes even happen that the enquiry into

mesne profits is completed before the expiry of 3 years and

that the final decree follows in due course while in fact no

possession had been delivered by then. It would not be

possible for the judgment-debtor to contend at that time

that the decree has not been properly prepared and that it

should state that in case possession is not delivered within

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the period of three years, mesne profits would be

payable only for the period of three years from the date of

the decree. It does not appear to be desirable that the

passing of the final decree be put off till either

possession is delivered or a period of three years had

expired from the date of the decree.

Lastly, we may draw attention to a possibility of the

decreeholder gaining by his own default, if he did not take

possession for a period longer than 3 years after the date

of the decree, when the decree did not specify the period

for which mesne profits would be allowed or merely stated

that mesne profits would be paid until delivery of

possession. The law did not contemplate such a case and

therefore clearly provided the maximum period for which

mesne profits would be allowed to the decree-holder after

the passing of the decree. Such a case was Kunwar Jagdish

Chandra v. Bulaqi Das(1).

(1) I.L.R. [1959] 1 All. 114.

676

We therefore hold that a decree under r. 12, O.20, C.P.C.

directing enquiry into the mesne profits, however expressed,

must be construed to be a decree directing the enquiry into

the mesne profits in conformity with the requirements of r.

12(1) (c) of O.20 and that the decree-holder in this case

cannot get mesne profits for the period subsequent to March

7, 1941 when the three year period from the date of the High

Court decree expired.

The other question urged for the appellant is that the High

Court was in error in arbitrarily fixing a higher amount of

mesne profits than what had been adjudged by the trial Court

which had itself arbitrarily increased the mesne profits

suggested by the Commissioner. It was urged for the

respondent decree-holder that even if -the High Court had

not given any reason for fixing the rate of mesne profits at

a higher rate than the rate fixed by the trial Court, it

must be presumed that the High Court had fixed the higher

rate after considering the material on record and that

therefore it cannot be said that the High Court had fixed

mesne profits arbitrarily.

It is therefore first necessary to consider whether the High

Court had given good reasons for decreeing mesne profits at

a higher rate than that fixed by the trial Court. We are of

opinion that the High Court had not really come to grips

with the question of proper mesne profits and that it varied

the rates in most cases, without expressing its reasons for

holding that the Subordinate Judge was wrong in his findings

regarding the quantum of mesne profits. This is clear from

certain circumstances. The first is that the High Court

overlooked the period of depression in considering the

quantum of mesne profits.

The Commissioner divided the period of 17 years from Septem-

ber 1926 to March 1943 into three periods, viz., 1926 to

1930, 1931 to 1940 and 1941 to 1943. The middle period

between the years 1931 and 1940 was a period of depression

and the last period was one in which prices of commodities

had risen to some extent on account of World War 11. In

view of these considerations, the Commissioner fixed the

rate of profits from land differently for each period.

The trial Court fixed at first a normal rate i.e., a rate

which was considered adequate for the first and the last

period, then made allowance for the period of depression and

calculated mesne profits at a lower rate for the ten years

between 1931 and 1940. The High Court appears to have

missed noticing the fact of the trial Court calculating

mesne profits at a lower rate for the period of

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677

ten years. It fixed one rate for the period 1926 to 1940

and another rate for the period 1941 to 1943, and thus

overlooked the long period of depression. It is on this

account that the mesne profits ordered by the High Court are

very much higher than what were fixed by the trial Court.

If this fact had not been ignored, the difference between

the two amounts would not have been so much and might have

been in the neighbourhood of Rs. 2,000 plus a corresponding

increase in the amount of interest. The High Court appears

to have missed this point as it was considered by the

learned Subordinate Judge practically at the end of his

judgment, at para 25. Below is given the Table showing

reduced rates of profits allowed by the Subordinate Judge

for the period 1931 to 1940:

|-----|------------|---------- --------|-------------------

| Item of | profit allowed | profit allowed per

Sl | Schedule | per acre by | acre by sub-judge

No | | sub-judge for | for period 1931-40

periods 1926-30 |

& 1941-43 |

------|----------- |------------------ |-------------------

1. |1,4, 8, 12 | Rs. 35 | Rs. 25

|of A-Schdu- | |

|le & C-sche-| |

|dule | |

2. | 9 of A-sch-| Rs.50 (for garden | Rs. 40 (for garden

| edule | produce) | produce)

| |

3. | 10,11, of | Rs. 10 | Rs. 7-8-0

| -do- | |

4. | 18 to 20 | Rs. 30 | Rs. 2

| of -do- | |

5. | Rest of | No change | No change

| items of | |

|A-Schedule | |

| viz,; 2, 3,| |

| 5,6, 7 & | |

| 13 to 17 | |

-----------------------------------------------------------

The second is that the High Court ordered profits

at a rate higher than what was even claimed by the decree-

holder in regard to item No. 9 of the A-Schedule properties.

The trial Court fixed the annual profits at Rs. 50. The

High Court said :

"We are inclined to think that it is too low.

We enhance the amount to Rs. 100 per year up

to 1940 and to Rs. 150 for the years 1941 to

1943."

The Commissioner's report shows that the plaintiff claimed

mesne profits for the mango grove at Rs. 150 per acre up to

1940 and later at Rs. 200 per acre, and thus claimed about

Rs. 94 a year up to 1940 and about Rs. 126 a year for the

later period, the area of the item being .63 cents. The

High Court could not be justified to award the mesne profits

higher than what are claimed by the decree-holder.

The third is that the finding of the High Court is not

consistent with its reasoning with respect to items Nos. 10

and 11 which were pasture lands. The Commissioner

suggested mesne profits at

678

Rs. 10 per acre and said that tax on item No. 10 was at Rs.

6 per acre and on item No. 11 at Rs. 5 per acre. The

Subordinate, Judge fixed mesne profits at Rs. 10 for the .95

acres in area and the proper tax for these items at Re. 1.

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The High Court raised the rate of mesne profits to Rs. 20

for the period up to 1940 and Rs. 30 for the subsequent

period, but confirmed the finding about the amount of tax.

In making this order the High Court seems to have been under

some confusion, for, the basis of its increasing the profits

seemed to be the fact that the tax on these items was Rs. 5,

as it said :

"He (the Subordinate Judge) confirmed the

finding of the Commissioner in this behalf.

The Commissioner gives no reasons as to how he

fixed the profits at Rs. 10 for the items. It

is stated that the tax paid on the land is Rs.

5. We are inclined to think that it would be

proper to fix Rs. 20 for the items up to 1940

and Rs. 30 for 1941 to 1943. The tax of Re.

I deducted by the Subordinate Judge is

confirmed."

The basis for raising the amount of mesne profits vanishes,

when the High Court finally agrees with the Subordinate

Judge that the tax would be Re. 1.

Another consideration is that the Subordinate Judge

calculated mesne profits for item No. 12, consisting of dry

land, at Rs. 35 per acre. The High Court enhanced the

amount to Rs. 50 per acre, probably thinking that garden

crops could be raised on this land as it said :

"The learned Subordinate Judge stated in

paragraph 18 that garden crops could be grown

on the surrounding lands."

This is not a very precise summing up of what the

Subordinate Judge had said in para 18 of his judgment. He

stated there that the Commissioner had fixed profits for

this item at Rs. 30 per acre per year as in the case of

other dry lands and that he was fixing profits at Rs. 35 per

acre as he had done so in respect of other dry lands. He

however referred to the observation of the Commissioner :

"He observes that there is evidence to show that on the

surrounding lands, garden crops were being raised and that

there is no reason to hold that no such crops were raised on

this item."

The Subordinate Judge did not fix the rate on the basis that

garden crops could be raised or were raised on the land of

item No. 12

679

and fixed the rate on the basis that it was dry land. The

Commissioner too does not appear to have fixed the rate on

the basis that garden crops could be raised on this land.

We may now consider how the High Court dealt with the

various items of property in A and C Schedules to show that

the variations made by it in the rates were not based on any

basic material on the record. We refer to them in the order

in which they were dealt with by the High Court.

Schedule A

Items Nos. 13 to 17 : The Subordinate Judge fixed the rent

of these houses at Rs. 4 a month. The High Court raised it

to Rs. 6 per month merely stating :

"We are inclined to think that the rent of Rs. 6 per month

might be fixed in regard to these items."

The reasons given by the Subordinate Judge for fixing the

monthly rent at Rs. 4 are, in his own words :

"The Commissioner has however fixed the mesne

profits for these items at Rs. 2 per month.

The Union tax itself on this house appears to

be Rs. 6-4-0 per year. The annual tax is

generally equivalent to about 2 month's rent.

The tax may be taken as a fairly correct basis

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for fixing the mesne profits. In that case,

the rate fixed by the Commissioner is too low

and I would fix the profits for these items at

Rs. 4 per month."

Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the

actual profits for the land comprised in these items at Rs.

35 per acre. His reasons were

"It is seen from the evidence of R.W. 26 that

the prices of land and maktas rose about 10

years after China Bapanna's death which took

place in 1915. If this statement were to be

taken as correct and if, according to Exhibits

P 1O and P- 1 1, the rent realised by dry

lands works out to Rs. 30 per acre, it cannot

be said to be unreasonable or excessive to fix

the profits on these dry lands at Rs. 35 per

acre from 1925 onwards. It may also be

remembered that prices rose after the close of

the 1918 war. The Commissioner has fixed it

at the rate of Rs. 30 only. I would however

fix the profits on these dry lands at Rs. 35/-

per acre per year and the petitioner would be

entitled to profits at this rate on items 1

and 4 also from 1926."

680

The High Court reduced the rate of profits to Rs. 30 per

acre for the period up to 1940 and raised it to Rs. 60 per

year for the period 1941 to 1943 and stated, in this

connection :

"The learned Subordinate Judge increased the

rent from Rs. 30 to Rs. 35 without giving any

reasons. We are inclined to hold that in

respect of all these three items, the rate

ought to have been fixed at Rs. 30 per year up

to 1940. After 1940 there was an increase in

prices. We are inclined to hold that for all

these three items the rate might he fixed at

Rs. 60 per year for the period 1941 to 1943."

The High Court was in error in noting that the Subordinate

Judge had given no reasons for raising the rate recommended

by the Commissioner. It is really the High Court which gave

no reason for lowering the rate up to 1940 and doubling the

arte from 1941 onwards.

Items Nos. 9, 10, 11 and 12 : We have already dealt with

items 9, 10, 11 and 12 and shown how the High Court had gone

wrong in increasing the rate of profits from them.

Items Nos. 18 to 20 : The Commisisoner recommended profits

at the rate of Rs. 30 a year. The Subordinate Judge agreed

with him and so did the High Court, for the period up to

1940. It however raised the rate to Rs. 60 a year from 1941

onward stating simply :

"But, so far as the years 1941 to 1943 are

concerned, we think it would be reasonable to

fix the rate at Rs. 60 per acre."

Item Nov. 2, 3, 5, 6 and 7 : The High Court confirmed the

findings of the Subordinate Judge with respect to the

profits for the period up to 1940 but fixed the rate per bag

at Rs. 10 for the period subsequent to 1941 stating :

"However, for the years 1941 to 1943, we fix

the rate per bag at Rs. 10-0-0 as the prices

had increased after 1940."

Schedule C

The Commissioner allowed profits at Rs. 30 per acre as in

the case of dry lands. The Subordinate Judge fixed profits

at Rs. 35 for the same reason as he bad fixed that rate for

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dry lands of items 1, 4 and 8 of Schedule A. The High Court

reduced the

681

rate to Rs. 30/- relying on leases Exhibits P. 10 and P. 1 1

of 1915. It ignored the statement of R.W. 26, considered by

the Subordinate Judge, that rents increased from 1925.

In view of what we have said above, we are unable to say

that the High Court was right in considering the rates of

profits fixed by the Subordinate Judge to be wrong and in

increasing the rate of profits for most of the items of

Schedule A and C and, especially, for the period between

1926 and 1940.

Two courses are now open for us. One is to set aside the

decree for mesne profits and send back the case to the Court

below for deciding it with respect to the quantum of mesne

profits. The other is to set aside the decree of the High

Court and restore that of the Subordinate Judge with respect

to the quantum of mesne profits up to March 7, 1941, in view

of the facts that the mesne profits awarded against the

appellant are for the period between 1926 and 1943 and that

any further enquiry about mesne profits would further put

off a final decree for mesne profits. In view of such a

consideration, learned counsel for the appellant had ex-

pressed, without prejudice, his client's agreeing to the

calculation of mesne profits at the rate determined by the

trial Court and, consequently, to the decree for mesne

profits passed by that Court, but the learned counsel for

the decree-holder respondent had stated that his client

would prefer a fresh decision of the High Court on the point

in case this Court found that the High Court was not

justified to raise the amount of mesne profits. The

respondent is more interested in the early finalisation of

the mesne profits than the appellant and so we would order

in conformity with his wishes.

We therefore allow the appeal with costs of this Court, set

aside the decree of the Court below and remand the case to

the High Court to determine afresh the quantum of mesne

profits up to March 7, 1941, when the three years from the

decree of the High Court expired and to dispose of the

appeal according to law.

Mudholkar J. This is an appeal from the judgment of the High

Court of Andhra Pradesh which arose out of a suit for pos-

session and mesne profits instituted in the year 1926. The

suit was dismissed by the trial court but on appeal the High

Court of Madras passed a decree therein in favour of the

second plaintiff who is the first respondent before us, on

March 7, 1938. The decree which the High Court passed, in

so far as mesne profits were concerned, was a preliminary

decree and therein the High Court made the following

provision with respect to the claim for mesne profits :

"that the lower court do make an enquiry as to the mesne

profits

682

from the date of the institution of the suit and pass a

final decree for payment of the amount that may be found due

up to the date of delivery of possession to the second

plaintiff."

No further appeal was taken by the first respondent, who is

the appellant before us, against whom the decree was passed.

Respondent No. 1 obtained delivery of possession of some of

the property with respect to which his claim had succeeded

in the year 1943 and of another item of property on January

1.5, 1948.

On an application preferred by respondent No. 1 a Commis-

sioner was appointed by the court of first instance for

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making an enquiry into mesne profits. After considering

that report the court passed final decree for a certain

amount in favour of respondent No. 1. In the course of the

judgment it observed

"So far as the A and C schedule properties are

concerned, there is no dispute about the mesne

profits in regard to their having to be

ascertained for a period of 17 years, i.e.,

from 1926 to 1943 February and for the mesne

profits in regard to the B schedule properties

being ascertained till 1946. The contest is

only in regard to the quantum and not to the

periods mentioned above."

The appellant preferred an appeal from the final decree

before the High Court of Madras which was eventually

transferred to the High Court of Andhra Pradesh. The

appellant, however, did not raise any ground in his memo of

appeal to the effect that mesne profits could not be awarded

for a period in excess of three years from the passing of

the preliminary decree. He had not raised this question

either in his counter affidavit in answer to the application

made by respondent No. 1 for the appointment of a

Commissioner for determining mesne profits nor had he raised

it before the Commissioner. On the other hand it was

conceded before the Commissioner, as also the Subordinate

Judge, that accounts can be taken up to the year 1943 in

respect of the properties described in Schedules A and C to

the plaint and up to 1946 in respect of properties described

hi Schedule B to the plaint. For the first time, however,

when the appeal was argued before the High Court of Andhra

Pradesh the appellant raised the contention that by virtue

of the provisions of O.XX, r. 12 the respondent No. 1 was

not entitled to the award of mesne profits beyond three

years from the date of the preliminary decree. In regard to

this objection the High Court observed :

"As the appellant raised no dispute and

elected to have the profits determined by the

subordinate Judge

683

up to the date of delivery of possession we

are not inclined to permit the appellant to

raise this new ground of appeal."

However, as the decision of the High Court was open to

further appeal it heard the parties on the new ground raised

by the appellant and decided it against him. Along with the

appeal the High Court dealt with the cross-objection

preferred by the first respondent in which he claimed

enhancement of the amount of mesne profits. The High Court

dismissed the appellant's appeal and partially allowed the

cross-objection preferred by the first respondent and

modified the final decree passed by the court. Eventually

the High Court granted a certificate to the appellant and

that is how the matter has come up before us.

Two points were urged on behalf of the appellant before this

Court. The first is that respondent No. 1 was not entitled

to be granted mesne profits for a period beyond three years

from the passing of the preliminary decree and the other is

that the High Court was in error in enhancing the amount of

mesne profits. Along with this appeal we have also heard an

appeal preferred by the respondent which is C.A. 926 of 1963

in which he claimed a further enhancement of the amount of

mesne profits.

I have had the advantage of reading the judgment of my

learned brother Raghubar Dayal in which he has held that the

High Court was in error in refusing leave to the appellant

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to raise a new ground at the stage of argument and after

allowing it to be raised has upheld it. In regard to the

second ground he has observed that the High Court was not

right in raising the amount of mesne profits and has

expressed the opinion that the matter be remanded to the

High Court for fresh decision on the point. He has also

expressed the view that the cross-appeal preferred by the

respondent should be dismissed.

I am clearly of the opinion that the High Court was right in

refusing leave to the appellant to raise a new ground at the

hearing since not only had he not raised it in the memo of

appeal but he had also allowed an enquiry into mesne profits

by the Commissioner to be made, for a period longer than

three years from the date of the decree and participated

therein. The reason why a new ground ought not to be

allowed to be raised at the hearing of an appeal has been so

well stated by Lord Birkenhead in Wilson v. United Counties

Bank Ltd.(1) that I need do no more than reproduce what he

has said:

(1) [1920] A.C. 102,106.

684

"The object of indicating in detail the

grounds of appeal, both to the Court of Appeal

and to your Lordships' House, is that the

respondent parties may be accurately and

precisely informed of the case which they have

to meet. Their efforts are naturally directed

to the contentions which are put forward by

the appellants. They are entitled to treat as

abandoned contentions which are not set forth.

lf in exceptional cases parties desire to add

new grounds to those of which they have given

notice, it will usually be convenient, by a

substantive application, to apply to the

indulgence of the Court which is to hear the

appeal. In the present case, both in the

Court of Appeal and before your Lordships,

entirely new contentions have been submitted

on behalf of the defendants. The practice is

extremely inconvenient and ought in my

judgment to be discouraged in every possible

way." (Italics mine).

Further, we cannot lose sight of the fact that the grant or

refusal of permission to raise a new ground was within the

discretion of the High Court. The High Court has given very

good and cogent reasons for refusing permission to the

appellant to raise the new plea and not acted capriciously,

as would be clear from the following passage in its judgment

:

"In the original grounds of appeal, no

objection was taken as to the period for which

mesne profits had to be paid. Before the

appeal was taken up, the appellant sought to

raise an additional ground of appeal viz.,

that the Subordinate Judge was not entitled to

grant mesne profits for more than 3 years from

the date of the High Court's decree. This

question was not raised in the counter

affidavit in I.A. No. 558 of 1945 on the file

of the Subordinate Judge, Eluru or before the

Commissioner ,or before the Subordinate Judge.

On the other hand, it was conceded before the

Commissioner as also the Subordinate Judge

that accounts can be taken up to 1943 in

respect of A and C schedule properties and up

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to 1946 in respect of B schedule properties.

It is for the first time that this objection

based on provisions of Order XX Rule 12 C.P.C.

is raised before this Court. If the objection

had been raised in the counter or before the

Commissioner, it would have been open to the

2nd plaintiff to file a suit for recovery of

the mesne profits beyond the 3 years up to the

date of delivery of possession. As the

685

appellant raised no dispute and elected to

have the profits determined by the Subordinate

Judge up to the date of delivery of

possession, we are not inclined to permit the

appellant to raise this new ground of appeal."

We would be going against all precedents as for instance the

decision of the Privy Council in Rehmat-un-Nisa Begum v.

Price() and our recent judgment in lttyavira Mathai v.

Varkey Yarkey(2) if we say that despite what the High Court

did, we shall go into the question ourselves. In that case

we have observed in col. 2 page 911 :

"It would thus be clear that the appellant has

not raised a sufficiently clear plea of

limitation by stating relevant facts and

making appropriate averments. It is

apparently because of this that the trial

court, though it did raise a formal issue of

limitation, gave no finding thereon. Nothing

would have been simpler for the trial court

than to dismiss the suit on the ground of

limitation if the plea was seriously raised

before it. Had the point been pressed, it

would not have been required to discuss in

detail the various questions of fact

pertaining to the merits of the case before it

could dismiss the suit. In the plaint the

respondents claimed that the period of

limitation for the suit commenced on 15-2-1113

when the High Court dismissed the revision

petition preferred by the respondents. The

appellant has not stated that under Art. 47 of

the Limitation Act, the period of limitation

is to be computed not from the date of the

revisional order but from the date of the

original order. Had he done so, we have no

doubt that the respondents would at least have

placed on record by amending the plaint the

date on which the plaint was instituted in the

court of the Munsiff. Thus had the plaint

been instituted in the court of the Munsiff

say two months before the expiry of the

limitation, the suit would have been within

time on 4-3-1118 when the plaint was

represented to the District Court, computing

the period of limitation even from the date of

the original order. Moreover, the appellants

could well have raised the question of

limitation in the High Court in support of the

decree which had been passed in their favour

by the trial court. Had they done so, the

High Court would have looked into the records

before it for satisfying itself whether the

suit was within

(1) 45 I.A. 61.

(2) A.I.R. 1964 S.C. 907.

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L4Sup./65

686

time or not. The point now raised before us

is not one purely of law but a mixed question

of fact and law. No specific ground has even

been taken in the petition made by the

appellant before the High Court for grant of a

certificate on the ground that the suit was

barred by time. In the circumstances, we

decline leave to the appellant to raise the

point of limitation before us."

We refused permission to the appellant to raise a new ground

for two independent reasons. One was that the appellant had

not raised a sufficiently clear plea in his written

statement. The other was that the question was a mixed one

of fact and law.

I am aware that in Yeswant Deorao Deshmukh v. Walchand

Ramchand Kothari(1) this Court has quoted with approval at

pp. 861-2 the following passage from the decision in

Connecticut Fire Insurance Co. v. Kayanagh (2) :

"When a question of law is raised for the

first time in a court of last resort upon the

construction of a document or upon facts

either admitted or proved beyond controversy,

it is not only competent but expedient in the

interests of justice to entertain the plea.

The expediency of adopting that course may be

doubted when the plea cannot be disposed of

without deciding nice questions of fact in

considering which the court of ultimate review

is placed in a much less advantageous position

than the courts below."

But there a question of limitation had in fact been raised

in the court below and what was sought by the appellant was

leave to press in aid s. 18 of the Limitation Act. It was

in this connection that the observations quoted earlier were

referred by this Court. Moreover, since this Court

negatived the plea based on s. 18 on the ground that the

necessary facts were not established the approval of Lord

Watson's view could at best be said to be a mere obiter.

We must also not lose sight of the principle that where a

party omits to raise an objection to a direction given by

the lower court in its judgment he must be deemed to have

waived his right and he cannot, for the first time at the

hearing of an appeal from the decision of that court

challenge its power to make the direction. In London Chatham

and Dover Railway Co. v. South Eastern Railway Co. (s) all

the Lords Justices of the Court of Appeal have

(1) [1950] S.C.R. 852.

(2) [1892] A.C. 473.

(3) [1889] 40 Ch. D. 100, 106-109.

687

emphatically said that an omission of a kind of which the

appellant in this case is guilty must be treated as a waiver

even of a plea of jurisdiction. In that case there was an

agreement between the parties, two railway companies, which

provided for a reference of all matters of difference

between them to arbitration under the Railway Companies

Arbitration Act. Section 26 of the Act required the court

where one of the parties to the agreement insisted upon it,

to give effect to and to act in accordance with the

agreement, so far as the submission to arbitration was

concerned. The defendant pleaded the arbitration agreement

in defence while the plaintiff challenged its validity. A

question was raised by the defendant about the competency of

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the court to adjudicate upon the validity of the agreement.

'Me trial Judge held in favour of the plaintiff and his

decision was upheld by the court of appeal. The defendant

took the matter to the House of Lords and while the appeal

was pending there the case came up before Kekewich J. One of

the questions in the appeal was whether, if the agreement

was a good one, the jurisdiction of the Court was ousted.

The defendant made an application for postponement of the

action because certain other points decided by the Court of

Appeal which had gone to the House of Lords would be

material. But the defendant did not say in the application

that the question about the jurisdiction of the Court was

also before the House of Lords and that for this reason it

ought not to be put to the trial of the action till it was

finally decided. The trial then proceeded and judgment was

given on the basis of the evidence. When the matter went to

the Court of Appeal the defendant contended that the Court

had no jurisdiction to go into the merits of the case.

Negativing it, Cotton L. J. said :

"........ the defendants did not say, 'While the decision in

the House of Lords is pending we cannot contend that this

point ought to go to an arbitrator, but we do not abandon

it, we still desire to keep it open;' but they go on with

the trial and they get the judgment of a Court upon the

evidence on the question which they now say the Court ought

never to have entertained. In my opinion parties ought not

to be allowed to do that. If when they can insist on the

Court not going into the merits of the case and deciding

questions between the parties, they abstain from doing so,

and are defeated on the merits, in my opinion it is too late

to insist before the Court of Appeal on any right to object

to the jurisdiction of the Court which they might have had

if they

688

had insisted on it in a proper way and at a proper time."

(p. 105).

Lindley L. J., observed:

"Having regard to the course which was adopted in the Court

below, I think the Defendants must be treated as having

waived this objection in the Court below, and it would not

be right for us to entertain it on appeal." (p. 107).

Bowen L. J., agreeing with the other Lords Justices said

"I agree with the Lord Justice that here, if the point had

been taken and insisted upon from the first, there might

have been no answer to it; but, at all events, when the

point is not taken from the first, it is to be treated as

having been abandoned in that way; and when a point such as

this is waived and not insisted upon, the Court is not

compelled at any stage of the litigation to go back and

treat the parties who have waived it as parties who have not

done so."

This is not an isolated decision, nor indeed does it lay

down a novel rule of practice. It is right and proper that

parties to a litigation should not be permitted to set up

the grounds of their claims or defence in driblets or at

different stages and embarrass the opponents.

Considerations of public policy require that a successful

party should not, at the appellate stage, be faced with new

grounds of attack after having repulsed the original ones.

The proper function of an appellate court is to correct an

error in the judgment or proceedings of the court below and

not to adjudicate upon a different kind of dispute a dispute

that was never taken before the court below. It is only in

exceptional cases that the appellate court may in its

discretion allow a new point to be raised before it provided

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there are good grounds for allowing it to be raised and no

prejudice is caused thereby to the opponent of the party

permitted to raise such point. But where the appellate

court in exercise of its discretion refuses leave to a party

to raise such point there is little scope for any indulgence

being shown by this Court. This would suffice to dispose of

the question whether mesne profits could be awarded till the

date of delivery but as my learned brother has considered

that question on merits, I must deal with it as well.

I regret my inability to agree with the decision of my

learned brother on the merits of the first point. There is

no doubt whatsoever that under O.XX, r. 12 (c) of the Code,

a court has to direct

689

enquiry as to mesne profits from the date of institution of

the suit until (i) the delivery of possession to the decree-

holder; (ii) the relinquishment of possession by the

judgment-debtor and notice to the decree-holder through the

Court or (iii) the expiration of three years from the date

of the decree, whichever event occurs first. Therefore,

when the Madras High Court passed a preliminary decree on

March 7, 1938 it ought to have given directions with regard

to the determination of mesne profits in the manner provided

for in cl. (c) of r. 12(1) of O.XX, C.P.C. The High Court

however, chose to make only a single direction and that is

that mesne profits be determined up to the date of the

delivery of possession and nothing more. It may be that the

High Court did not expect that the delivery of possession

would be delayed beyond three years of the passing of the

decree or that the High Court overlooked the possibility of

possession being delivered more than three years after its

decree. Therefore, it does not necessarily follow that the

failure of the High Court to make it clear that in any case

the determination of mesne profits shall not be for a period

in excess of three years from the date of preliminary decree

was an error. Even assuming that the direction in the

preliminary decree that mesne profits shall be determined

and consequently will be payable right up to the date of

delivery of possession, whenever the event occurred, was

wrong, that decision has to be given effect to. This

decree, as already pointed out, was not challenged by taking

a further appeal and has, as between the parties, become

final by the operation of the provisions of s. 97 of the

Code of Civil Procedure which says :

"Where any party aggrieved by a preliminary

decree passed after the commencement of this

Code does not appeal from such decree, he

shall be precluded from disputing its

correctness in any appeal which may be

preferred from the final decree."

The appeal before us is an appeal from the final decree and,

therefore, the appellant is precluded from making a

challenge to a direction in the preliminary decree. I am

fortified in this view not only by what we have said in

Ittyavita Mathai's case(1) in para 8 at p. 910 but also by

the recent judgment of this Court in Smt. Gvarsi Bai & Ors.

v. Dhansukh Lal & Ors. (7 There, Subba Rao J., speaking for

the unanimous Court has observed

"In a case where a decree is made in Form No.

5A, it is the duty of the Court to ascertain

the amount due to

(1) A.I.R. 1964 S.C. 907.

(2) [1965] 2 S.C.R.

690

the mortgagee at the date of the preliminary

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decree. How can the amount due to the

mortgagee as on the date of preliminary decree

be declared unless the net profits realized by

him from the mortgaged property are debited

against him ? The statutory liability of the

mortgagee to account up to the date of the

preliminary decree would be the subject-matter

of dispute in the suit up to the date of the

said decree. The Court has to ascertain the

amount due under the mortgage in terms of the

mortgage deed and deduct the net realizations

in the manner prescribed in s. 76(h) of the

Transfer of Property Act and ascertain the

balance due to the mortgagee on the date of

the preliminary decree. If the mortgagor did

not raise the plea, he would be barred on the

principle of res judicata from raising the

same, as the said matter should be deemed to

have been a matter which was directly and

substantially in issue in the suit up to that

stage. It is settled law that though a

mortgage suit would be pending till a final

decree was made, the matters decided or ought

to have been decided by the preliminary decree

were final. Suppose the mortgagor paid

certain amounts to the mortgagee before the

preliminary decree; if these were not given

credit to the mortgagor and a larger amount

was declared by the preliminary decree as due

to the mortgagee, can the mortgagor, after the

preliminary decree, reopen the question ?

Decidedly he cannot. This is because the

preliminary decree had become final in respect

of the disputes that should have been raised

before the preliminary decree was made."

That the general principles of res judicata would apply to

such a case as this was held long ago in Ram Kirpal Shukul

v. Mussumat Rup Kuari(1) and the view taken therein has been

followed by this Court in Gulabchand Chhotalal Parikh v.

The State of Bombay (now Gujarat) (2).

It is, however, contended that what the appellant seeks in

this ,appeal from the final decree is merely an

interpretation of a direction in the preliminary decree and

that that direction should be construed in such a way as to

make it a decree according to law i.e., in accordance with

the provisions of O. XX, r. 12, C.P.C. The question of

construction of a decree can only arise where the decree is

ambiguous. A number of cases were relied upon before

(1) 11 I.A. 37. (2) [1965] 2 S.C.R. 546.

691

us on behalf of the appellant and some of them have been

discussed in the judgement of my learned brother as also in

the judgement of the full Bench in Kudapa Subbanna v.

Chitturi Subbanna & ors.(1). That decision is subject of

the appeal preferred respondent No. 1 in C.A. No. 926 of

1963. It may be conceded that where the meaning of a term

of a decree is not clear Or is ambiguous the question of

construing that term would arise. In such a case the court

whose duty it is to construe it would be doing the right

thing in placing upon it a construction which will make it

conformable to the law. The direction in question contained

in the preliminary decree of the High Court does not, in my

opinion, suffer from vagueness, ambiguity or such

incompleteness as will make its enforcement impossible. It

may be that the High Court in making the direction wrongly

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thought that it had discretion to specify any of the three

events set out in cl. (1) (c) of

r. 12 of O. XX or that it expected that possession would

be delivered by the appellant to the respondent before

the expiry of three years. Or it may be that the High Court

had overlooked the limitations cl. (c) of O. XX, r. 12(1).

But whether it was one or the other, does not render the

direction in question vague, ambiguous or incomplete. In

order to ascertain whether a particular term or direction in

a decree is clear and complete or vague and ambiguous the

court must ordinarily confine its attention to the direction

itselfl. It will be justified in looking to the other

provisions in the decree if there appears to be a doubt

about the meaning of its terms or if any of the terms

conflict with another part of the decree. But where there

is no such doubt or conflict the occasion to look at the

other terms of the decree cannot arise. It is, however, not

the suggestion of Mr. Viswanatha Sastri that this Particular

term is inconsistent with any of the other terms of the

decree. His argument is that if the term is taken by itself

it would be in conflict with law and so we must read in it

the whole of the provisions of O. XX, r. _12(1) (c). But

then the High Court has clearly selected only a portion of

this provision and made that alone as a term of its decree,

omitting the rest of it. The argument of learned counsel in

substance amounts only to this : that the High Court in

acting in this manner committed an error of law, but mere

error of law does not vitiate the direction made by the High

Court. Even assuming that one of the terms of a decree is

erroneous in law the decree is nonetheless binding upon the

parties until and unless it is corrected in appeal or other

appropriate proceeding. Such a decree

(1) Appeal No. 368 of 1956 decided on 23-2-1962.

692

cannot be treated as one which was passed without

jurisdiction. For, it is well settled that while it is the

duty of a court to decide right it may well happen that it

decides wrong. Whichever way it decides, it acts within its

jurisdiction and not beyond it, as was observed by the Privy

Council in Malkarjun v. Narhari(1) which was followed by

this Court in Ittyavira Mathai's case(2). A wrong decision

is no doubt vulnerable but it does not automatically become

unenforceable. Unless corrected in the manner provided for

in the Code it will operate as res judicata between the

parties in all subsequent stages of the lis.

I have not thought it necessary to discuss the various

decisions cited at the Bar and noted by my learned brother

because the decrees construed in them were found to be vague

or incomplete. To my mind it would not be right for a court

to characterise a term of a decree which upon its face

appears to be clear and complete, as being vague or

incomplete merely because in its view that term is erroneous

and then proceed to interpret it. So far as a Court whose

duty it is to give effect to a decree of a Court of

competent jurisdiction is concerned it is immaterial whether

the term or direction as it stands is contrary to law. So

long as it is, on its face, complete and capable of

enforcement it has no power to go behind. For these reasons

I am of opinion that the first contention raised on behalf

of the appellant must fail.

As regards the question of quantum of mesne profits I agree

with my learned brother that the High Court has given no

good reasons for enhancing the amount. In dealing with

various items it seems to have proceeded on assumptions or

raised the rates of profits to be allowed without referring

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to the basis for the enhancement. In the circumstances I

would agree to the course proposed by him.

The appeal, therefore, succeeds only partially and in the

circumstances the appropriate order for costs would be for

each party to bear its costs in this Court.

Appeal allowed.

(1) 27 I.A. 216. (2) A.I.R. 1964

S.C. 907.

693