Ramaswami, J.

(1) This rule is directed against an order of the Subordinate Judge of Ranchi dated 15th July 1949 setting aside a final decree passed ex parts in exercise of his inherent jurisdiction.

(2) On 18th August 1942 applicant Mt. Balmati Kumari brought the suit asking for partition of 1/5th share of certain immovable properties. The suit was dismissed by the trial Judge and an appeal was preferred before the High Court. On 1st March 1946 the parties agreed to a compromise and the High Court disposed of the appeal informs thereof. According to the compromise (1) the case was to be remitted to the learned Subordinate Judge for ascertaining the net income of the family properties regarding which the suit was brought, (2) Mt. Balmati Kuer shall be entitled to l/8th of the total net income of the family properties as ascertained by the learned Subordinate Judge in satisfaction of her claim in the suit and in lieu of maintenance, (9) the above share of the income shall be paid by the respondent annually to the appellant and shall be a charge on the properties.

(3) After the remand the learned Subordinate Judge issued a writ to a pleader-commissioner who submitted his report on 28th January 194

8. As no objections were filed the Subordinate Judge accepted the report and ordered that a final decree should be prepared. On 30th July 1948 Rameshwar Pandey, curator of defendant 4, applied to the Court asking that the final decree should be set aside on the ground that defendant 1 was not properly represented before the commissioner, that the latter calculated mesne profits for six years in direct contravention of the consent order passed by the High Court and that there had been an abuse of the process of the Court. After hearing the parties the learned Subordinate Judge allowed the application and set aside the final decree under Section 151, Civil P. C. on the ground that there had been a gross mistake on the part of the pleader-commissioner and there had occurred miscarriage of justice.

(4) In support of this rule Mr. L. K. Choudhuri contended that the learned Subordinate Judge had no jurisdiction to set aside the ex parte final decree in exercise of his inherent powers beyond the period of limitation pre-scribed by the statute. In support of his argument learned counsel cited Ajodhya Mahton v. Mt. Phul Kuer, 1 Pat. 277: (A. I. R. (9) 1922 pat. 479) [LQ/PatHC/1922/10] in which a Bench of this Court held that an ex parte final decree could not be set aside under Order 9, Rule 13, on the ground that the application for the final decree was barred by time; that if a definite period of limitation has been provided by law within which action must be taken a Court is not entitled to extend such period by purporting to act under Section 15

1. But the facts of this case must be distinguished for there was no allegation that there has been any mistake or abuse of the process of the Court, Learned counsel also referred to Surendra Kumar Singh v. Mukund Lal Sahu, A. I. R. (36) 1949 Pat. 68, [LQ/PatHC/1946/177] in which Ray J. observed that the inherent power of Court is intended to be exercised only for granting relief against abuse of process of Court and not for spinning out a new procedure for a particular suit or proceeding, that such a power cannot be exercised for setting aside an ex parte final decree for foreclosure as it would necessarily involve loss of a vested right in plaintiff, It should again be noticed that in this case Ray J, clearly found that there was no abuse of process of Court and it was only for granting relief against such abuse that inherent power is given.

(5) In the present case it is manifest that the pleader commissioner made a gross mistake in not ascertaining the total net income according to the terms of the compromise decree which the High Court recorded. The pleader commissioner commenced his report by stating that he had been appointed "to ascertain mesne profits of the suit properties for the period directed in the decree." At p. 5 of his report the pleader-commissioner states that he had been ordered to ascertain mesne profits for the year directed in the decree but "as there is no period mentioned in the decree be calculated mesne profits of the properties for six years, i. e. from the year 1942 when the property was released from the management of the Encumbered Estates and up to the year 1947." It is not disputed that the compromise decree was passed in the High Court on 1st March 1946 and it is not clear upon what basis the pleader-commissioner calculated the mesne profits for six years from the date of the institution of the suit. On behalf of the applicant learned counsel contended that there was no difference between the calculation of net income and mesne profits. In my opinion it is not possible to accept this argument. The term mesne profits" is used to denote compensation that is to say damages recoverable from a person who has been in wrongful possession, and in such circumstances means that which the plaintiff has lost by reason of the wrongful act of the defendant; and it is not the profit actually made by the defendant but that which the plaintiff might reasonably be expected to have made, had his possession not been wrongfully disturbed. When the wrongful possession is of a very aggravated character the court may in computing mesne profits refuse to take into account even the collection expenses incurred by the wrong-doer during the period of his possession. In Girish Chander v. Soshi Shikhareswar, 27 I. A. 110 : (27 Cal. 951 [LQ/CalHC/1900/43] P. C.), the Judicial Committee observed that mesne profits were in the nature of damages which the Court may mould according to the justice of the case. In Abdul Ghafur v. Raja, Bam, 23 ALL. 253 : (1901 A. W. N. 80), the High Court held that when the trespass is of an aggravated character the Court had full discretion to refuse collection expenses incurred by a trespasser for the period he was in possession. It Is manifest, therefore, that there is a great difference in principle, between calculating "mesne profits" recoverable from a person who is in tortious possession and "a share of net income" due from the defendant who is in possession of the joint family properties which sum is given in lieu of maintenance and which is to be charged on the family properties. Instead of determining the total net income of the properties it would seem that the Court had issued a writ to the Commissioner for "ascertainment of mesne profits for the period directed in the decree" which decree is silent about mesne profits or about the period for which it should be computed. After the commissioner had submitted his final report the learned Subordinate Judge again committed a mistake in mechanically accepting it without applying his mind to the question whether the commissioners report was in accordance with the terms of the compromise decree which the High Court recorded. In my opinion there is no clearer case for exercising inherent jurisdiction than the present one and the learned Subordinate Judge properly exercised it for setting aside the final decree passed.

(6) It is manifest that the present case falls within the principle of Debt, Bakhsh Singh v. Habib Shah, 35 ALL, 331 : (40 I. A. 151 P. C.) in, which for non appearance of the plaintiff an order was made dismissing the suit for default. The plaintiff was in fact dead at the time the order was made and his son, the appellant, was engaged in performing his fathers funeral ceremonies and was unable to attend the Court. There facts were brought to the notice of the Deputy Commissioner and an application was made under Order 22, Rules 3 and 9 by the son as the heir and legal representative of the plaintiff. The application was accepted by the Deputy Commissioner within the time allowed by law and an order was made setting aside the dismissal of the suit and substituting the name of the son on the record in place of the deceased plaintiff. On an application for revision of the Deputy Commissioners order under Section 135 of the Code the Court of the Judicial Commissioner reversed it holding that the order of dismissal of the suit was a proper order under Order 9, Rule 8 and the application to set aside the order was not within time and was barred and Order 22, Rule 3 applied only to a still pending suit and not to one that had been dismissed. On appeal the Judicial Committee held that there was an abuse of the process of the Court within the meaning of Section 151 of the Code that the order of the Deputy Commissioner setting aside the dismissal was manifestly sensible and correct and ought to be restored. In pronouncing the opinion of the Judicial Committee Lord Shaw observed :

"Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But Section 151 could never be Invoked in a case clearer than the present, and their Lordships are at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of."

(7) The principle wag followed in Balgobind v. Sheo Kumar, A. I. R. (11) 1924 ALL 818 [LQ/AllHC/1924/220] : (46 ALL. 864) in which there was a gross mistake on the part of the Court. A preliminary decree for foreclosure had been passed in a mortgage suit instead of a preliminary decree for sale. The High Court observed that even if the parties had not shown a prompt sense of their obligation or a right appreciation of the appropriate procedure it was nonetheless the object of Courts to decide the rights of parties and not to punish them for mistake they had made in the conduct of their case, that Section 151 could not be invoked more appropriately than for the purpose of correcting a miscarriage of justice appearing on the face of the proceedings and to prevent an abuse of the process of the Court. The High Court added that it would be absolutely shocking, if the Court were to enforce against a mortgagor or any one interested in the equity of redemption a foreclosure decree when he had been misled by its duly accredited agent owing to the issue of a notice for a decree for sale. Accordingly High Court set aside the decree absolute for foreclosure made in the case.

(8) In this contest reference should be made to Rodger v. Comptoird Escompte de Paris, (1871) L. R 3 P. C. 465 at p. 475 ; (40 L J. P.C. 1), in which Lord Cairns L C. laid down the principle that it is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. At page 475, Lord Cairns states :

"One of the first and highest duties of all Counts is to take care that the act of the Court does no injury to any of the suitors, and when the expression the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes at the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."

(9) In this connection, the language of Lord Eldon in Pulteney v. Warran, (1801) 6 ves 73 at p. 92 : (31 E R 944) has application :

"If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversight at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases."

(10) Upon these grounds I think that the learned Subordinate Judge rightly acted under his inherent jurisdiction in setting aside the ex parte final decree made in this case. I should accordingly discharge the rule. The application is dismissed but there will be no order as to costs.