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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