1. It appears that a sale held in the year 1900, inexecution of a decree at which the decree-holder was the auction purchaser, wasafterwards set aside on the 29th June 1907. The decree-holder was in possessionof the property sold from November 1900, to June 1908. On the 10th May, 1909,the Applicant in the present case purchased the property from thejudgment-debtor together with the right to sue the decree-holder for mesneprofits in respect of the period during which he had been in possession. On the2nd April 1910, the Applicant presented the application for mesne profits outof which this second appeal has arisen. The Courts below have concurred in treatingthe application as an application under sec. 144 of the present Code of CivilProcedure and have accordingly given the applicant a decree for mesne profitsto the amount of Rs. 1,350. The Appellant before us is Dino Nath Das, thedecree-holder auction purchaser.

2. Now, in the first instance, it is quite clear thatwhatever may have been the power of the Courts to entertain this application,it is not one authorized by the terms of sec. 144. Sec. 144 begins "Whenand in so far as a decree is varied or reversed, the Court of first instanceshall, on the application of any party entitled to any benefit by way ofrestitution...." But here no restitution was sought in respect of anydecree which had been varied of reversed and sec. 141 of the Code does not makesec. 144 applicable to execution proceedings [Beni v. Pran 15 C.L.J. 187(1911)]. Inasmuch however, as the Respondent obtained an order in his favour inthe Courts below purporting to be made under sec. 144 of the Code, and inasmuchas a determination tion of a question arising under sec. 144 is a decree byforce of the definition clause in sec. 2, the Respondent cannot be heard to saythat the present appeal is incompetent. The fact, therefore, that the Courtsbelow had no jurisdiction under sec. 144 to entertain the application does nothelp the Respondent.

3. Before we deal with the ground of appeal on which theAppellant principally took his stand, we may premise that the Appellant did notpress the objection that a right to sue for mesne profits is not transferableand was willing to concede for the purposes of this case that a Court mighthave some inherent power to entertain an application of this kind. We are notconcerned therefore to dispute the view taken upon the latter question in the caseto which we have already referred. Nor is it necessary for as to considerwhether the application is one which does or does not fall within the scope ofsec. 47. Assuming that it falls within that section, it still remains that therelief sought is dependent upon the supposed inherent powers of the Court togrant relief of this kind by way of restitution in the course of executionproceedings.

4. Now the only objection that was insisted upon was theobjection that in any view of the matter the Courts below erred in awardingmesne profits for the whole of the period during which the Appellant was inpossession. The contention was put in this way that if a suit had beeninstituted for mesne profits on the date on which the application was made,then under Art. 109 of the Limitation Act, the Applicant as Plaintiff wouldhave been debarred from recovering mesne profits for any period in excess ofthree years from that date, and no inherent power of the Court -- assuming anyinherent power to exist -- can entitle him to mesne profits for a longerperiod. This reasoning is supported by the case of Safaraddi v. Durga (2) andin our opinion ought to prevail.

5. Assuming, therefore, without deciding that the firstCourt had inherent jurisdiction to award mesne profits upon the applicationpresented by the Respondent, it either had no power, or it was an improper andunsound exercise of judicial discretion, to award mesne profits for a period inexcess of the period for which mesne profits could have been obtained by suit.The result is that the decree appealed from must be modified by declaring thatthe Respondent is entitled to mesne profits only for the period between 2ndApril 1907 and June 1908. The amount awarded by the Courts below will bediminished accordingly. The parties will receive and pay costs in this Courtand the Court below in proportion to their success or failure.

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Dino Nath Das vs.Jogendra Nath Bhoumik (14.08.1914 -CALHC)