Case: Chitturi Subbanna Vs. Kudapa Subbanna & Others

Raghubar Dayal, J. (on behalf of himself and with him SIKRI, J.)1. 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. Kudappa Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the properties mentioned in schedules A and C and to 1/24th 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 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 properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1948. 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 of on September 25, 1944. On July 28, 1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-48 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.2. On April 22, 1949, Chittoori 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.45,000 but he confined his claim to Rs. 19,000 only.3. 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. Chittoori 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. 10,000.4. Chittoori 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 determined 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 delivery of possession. It is urged before us for the appellant that the High Court was in error in not a lowing 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 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.5. The appellant could not have claimed - and did not claim - a right to urge the new point which has 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 Wilson v. United Counties Bank, Ltd., 1920 AC 102 at p. 106, 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."6. In Yeswant Deorao Deshmukh v. Walohand Ramohand Kothari (1950) SCR 852 : (AIR 1951 SC 16 ) 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 S. 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 Connecticut Fire Insurance Co. v. Kavanagh, 1892 AC 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. Govt. of Madras, (1955) 2 SCR 374 at p. 381: ((S) AIR 1955 SC 604 at p. 607):"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-General, therefore, rightly did not press the first contention before us."7. In Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 , 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 decline leave to the appellant to raise the point of limitation before us."8. 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.9. We shall deal with the reasons given by the High Court for 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.10. In Rehmat-un- Nissa Begam v. Price, 45 Ind App 61 : (AIR 1917 PC l16), the observations at p. 66 (of Ind App): (at p. 118 of AIR), 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.11. There was no question to the appellants 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 three years 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 appellants making any such concession. Similarly, no question of the appellants 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 question at 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 upto the date of delivery of possession is an order based on the consent of the parties.12. 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.13. The case reported as London Chatham and Dover Rly. Co. v. South-Eastern Rly. Co. (1888) 40 Ch D 100 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 and 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 jurisdiction ..., to all agreements, references, arbitrations and awards, in accordance with the Act. This provision was construed not to oust the jurisdiction of the ordinary 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 jurisdiction of the Court was ousted even if the agreement be a good one. The 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 of 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 matter in dispute if neither party insisted on arbitration and that the parties ought not be allowed to raise the point of jurisdiction. The reason given by Cotton L.J., at 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 inisist 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."14. In the present case the appellant did a not let the Trial Court determine the question of the period upto 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.15. 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 appellant had raised the objection that mesne profits could not be decreed for the period subsequent to March 7, 1941 the 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 appellants raising the new ground at the hearing of the appeal.16. We are, therefore, of opinion that the High Court was in error in not allowing the appellant to urge this additional ground before it.17. 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 Courts decree, i.e., subsequent to March 7, 1941. The contention for the judgment-debtor is that mesne profits cannot be awarded for the period subsequently to March 7, 1941 in view of the provisions of O. 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 of mesne profits, the Court may pass a decree-(a) for the possession of the property ;(b) for the rent or mesne profit 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 enquiry 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 decreeholder 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 upto the date of delivery of possession should be construed to mean a direction for an inquiry into the mesne profits upto the date of delivery of possession or upto 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, 27 Ind App 110 (PC), 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 upto 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, 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 appellants conduct did not amount to his consenting to mesne profits being decreed for the period subsequent to March 7, 1941.18. 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 inqury 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 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.19. 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 awarded have been considered to be matters of construction and had been construed in accordance with the law at the relevant time.20. 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 upto the delivery of possession. The decree was for mesne profis which were to be determined in execution.21. In Fakharuddin Mahomed Ahsan Chowdhry v. Official Trustee of Bengal, 8 Ind App 197 (PC), 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 was to be paid. The plaint was also not very clear in stating the time upto which wasilat was claimed. The Privy Council construed the decree to award mesne profits upto 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 upto the time of possession.22. Section 211 of the Code of Civil Procedure, 1882(Act XIV of 1882) provided for decreeing the mesne profits upto delivery of possession or upto 3 years after the decree, whichever event took place earlier. The change of law, therefore, restricted the power of the Court to grant mesne profits to a period upto 3 years from the date of the decree. In Girish Chunders case, 27 Ind App 110 (PC), 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 upto 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 upto 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 upto 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 unauthorized 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.23. In Venkata Kumara v. Subbayamma, AIR 1915 Mad 226 , Uttamram v. Kishordas, ILR 24 Bom 149, and Trailokya v. Jogendra, ILR 35 Cal 1017, 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 Chunders case, 27 Ind App 110 (PC), where the decree provided that the decree-holder would get mesne profits for the period of dispossession. Similarly in Godavari Raja v. Ramachandraswami, AIR 1943 Mad 354 , Narayan v. Sono, ILR 24 Bom 345, Kumar Jagdish Chandra v. Bulaqi Das, ILR (1959) 1 All 114 : (AIR 1959 All 242 ) and Kanai Lal v. Shyam Kishore, AIR 1959 Cal 76 , 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.24. 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 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 Chunders case, 27 Ind App 110 (PC), on the basis of the decree being vague or incomplete. It simply held that the decree for a period in excess of three years was not authorized by S. 211 of the Code of Civil Procedure of 1882.25. 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.26. It is urged for the decree-holder 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 decree. 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 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.27. The preliminary decree directed an inquiry about the mesne profits from the date of the institution of the suit upto 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 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-debtors liability to mesne profits arose under the ordinary law and a suit for realizing mesne profits could be separately filed by the decree-holder. 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-holder. 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).28. The direction in the preliminary decree cannot operate, in terms of S. 11, 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 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.29. We, therefore, hold that the judgmentdebtor 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.30. 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 profit 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 the final decree follows in due course while in fact no possession had been delivered by them. 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 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.31. Lastly, we may draw attention to a possibility of the decree-holder 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 ILR (1959) 1 All 114 : (AIR 1959 All 242 ).32. 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 years period from the date of the High Court decree expired.33. 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.34. 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.35. The Commissioner divided the period of 17 years from September 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 II. In view of these considerations, the Commissioner fixed the rate of profits from land differently for each period.36. 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 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 1940.37. Serial No. Item of Schedule Profit allowed per acre by Sub-Judge for periods Profit allowed per acre by Sub-Judge for period1926-30 and 1941-43 1931-401. 1, 4, 8, 12 ofA-Schedule and Rs.35 /- Rs. 25 /-C-Schedule2. 9 of A Schedule Rs.50/- (for garden produce) Rs. 40/- (for garden produce)3. 10, 11 of -do- Rs.10 /- Rs. 7-8-04. 18 to 20 of -do- Rs. 30 /- Rs. 20/-No Change5. Rest of items of A. Schedule Viz.2, 3, 5, 6, 7 and 13 to 1737. 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 upto 1940 and to Rs. 150 for the years 1941 to 1943". The Commissioners report shows that the plaintiff claimed mesne profits for the mango grove at Rs. 150 per acre upto 1940 and later at Rs. 200 per acre, and thus claimed about Rs. 94 a year upto 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.38. 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 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. The High Court raised the rate of mesne profits to R. 20 for the period upto 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 upto 1940 and Rs. 30 for 1941 to 1943. The tax of Re. 1 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. 1.39. 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 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 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.(10) 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 Aitems 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 months, rent. The tax may be taken as a fairly correct basis 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."41. 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 Bapannas death which took place in 1915. If this statement were to be taken as correct and if, according to Exhibits P-10 and P-11, 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 Nos. 1 and 4 and from 1926."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 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 be 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 rate from 1941 onwards.42. Items Nos. 9, 10, 11 and 12 : We have already dealt with items Nos. 9, 10, 11 and 12 and shown how the High Court had gone wrong in increasing the rate of profits for them.43. Items Nos. 18 to 20: The Commissioner 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.”44. Items Nos. 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 as the prices had increased after 1940."SCHEDULE C45. 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 had fixed that rate for dry lands of items Nos. 1, 4 and 8 of Schedule A. The High Court reduced the rate to Rs. 30 relying on leases Exhibits P.10 and P. 11 of 1915. It ignored the statement of R.W.26 considered by the Subordinate Judge, that rents increased from 1925.46. In view of what we have said above, we are unable to say that 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 Schedules A and C and, especially, for the period between 1926 and 1940.47. 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 that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients 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 decreeholder 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.

Decision:
1[ds]We agree with this contention.The question sought to be raised was 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.5. The appellant could not have claimedand did not claima right to urge the new point which has 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 Wilson v. United Counties Bank, Ltd., 1920 AC 102   at p. 106, to thein 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 theutmost that can be said is that both the parties theor, 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 question at the trial Court, does not mean that he had given his consent for the determination of mesne profitsfor the periodsubsequent 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 upto the date of delivery of possession is an order based on the consent of the parties.12. 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.In the present case the appellant did a not let the Trial Court determine the question of the period upto 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.15. The Commissioner conducted the enquiry about mesne profits from August 29, 1946 till December 4, 1947. Suits for mesne profitseen March 7, 1941 and February 28, 1943 could not be instituted in August 1946 as the period of 3 yearshe institution of a suit formesne profits of those years had expired by then. It follows that even if the appellant had raised the objection that mesne profits could not be decreedfor the periodsubsequent to March 7, 1941 therespondent 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 appellants raising the new ground at the hearing of the appeal.16. We are, therefore, of opinion that the High Court was in error in not allowing the appellant to urge this additional ground beforehave already held that the appellants conduct did not amount to his consenting to mesne profits being decreedfor the periodsubsequent to March 7, 1941.18. 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 tothe institution ofa suit for the recovery ofpossession of immovable property and mesne profits. It is not disputed for the respondentthat R, 12, O. 20, does not empower a Court to direct an inqury 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 thisprecedent case law is in favour of thent. 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.19. 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 awarded have been considered to be matters of construction and had been construed in accordance with the law at the relevantprinciple enunciated in this case about the construction of the decree for mesne profitsfor the periodof 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 awardedfor the periodof 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.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 thoseobject 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 forat the stage of the preparation of the final 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.27. The preliminary decree directed an inquiry about the mesne profits from the date ofthe institution ofthe suit upto the date of delivery of possession to ther could not have felt aggrieved against this order. Thecould 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 thehe institution ofthe suit. The 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 thewould be entitled to get mesne profits. No such point can be raised before it. Theliability to mesne profits arose under the ordinary law and a suit for realizing mesne profits could be separately filed by theThe 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 theIt 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).28. The direction in the preliminary decree cannot operate, in terms of S. 11, 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 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.29. We, therefore, hold that the judgmentdebtor 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.30. 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 frominstitution of the suit untilthe actual delivery of possession of the property to theor 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(1) of R. 12 will determine the period for which mesne profits would be payable to theEither, 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 profit 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 the final decree follows in due course while in fact no possession had been delivered by them. It would not be possible for the judgmentdebtor 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 the period of three years, mesne profits would be payable onlyfor the periodof 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.31. Lastly, we may draw attention to a possibility of thegaining 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 theafter the passing of the decree. Such a case was ILR (1959) 1 All 114 : (AIR 1959 All 242  ).32. 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 thein this case cannot get mesne profitsfor the periodsubsequent to March 7, 1941 when the three years period from the date of the High Court decreeare 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 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 allowancefor the periodof 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 ratefor the periodof ten years. It fixed one ratefor the period1926 to 1940 and another ratefor the period1941 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 Judgefor the periodhe 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. 1.39. 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 itlearned Subordinate Judge stated in paragraph 18 that garden crops could be grown on the surroundingis not a very precise summing up of what the Subordinate Judge had said in para. 18 of hisSubordinate 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 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 thisHigh 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 rate from 1941 onwards.In view of what we have said above, we are unable to say that 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 Schedules A and C and, especially,for the periodbetween 1926 and 1940.47. 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 arefor the periodbetween 1926 and 1943  that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients 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 decreeholder 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.