L.S. Jackson, J.@mdashThe plaintiff, who is now before us as decree-holder and special respondent, brought a suit against the special appellant for a certain quantity of land. In that suit, he got a decree from the Court of first instance for the land which he claimed, except 22 bigas. The plaint also contained a demand for mesne profits in respect of the land, but the decree was wholly silent as to such mesne profits. The plaintiff, being dissatisfied with the judgment of the Court of first instance, preferred an appeal to the Zillah Judge in respect of the 22 bigas of land for which he had been refused a decree; and that Court, reversing in this particular the judgment of the Court below, decreed the appeal.
2. After this, the plaintiff, considering that the first suit had given him nothing in the way of mesne profits, brought a second suit for mesne profits, both of the period comprised in the plaint, and also of the subsequent period. This second suit, it appears, was dismissed upon the ground that the plaintiff''s proper course was to obtain his mesne profits in execution of his first decree. He has now sought to execute that decree for the purpose of obtaining the mesne profits in question; and the Subordinate Judge, as well as the Judge of Hooghly, have held that the decree-holder is entitled to obtain those mesne profits in execution of his first decree.
3. Against this decision, the judgment-debtors appeal specially to us, and they contend that the execution itself is barred by limitation, and also that there has been error in holding the decree-holder entitled to wasilat in execution.
4. It has been shown, I think, satisfactorily that no limitation arises, inasmuch as the application to execute was within three years from the final decree passed in special appeal in the original suit.
5. But on the second point I thick the special appellant must succeed. It is contended that section 11, Act XXIII of 1861, supports the decision of the Courts below, and entitles the decree-holder to his wasilat. It appears to me, however, that the section in question has not that effect, The words of the section are:--"All questions regarding the amount of any mesne profits, which by the terms of the decree, may have been reserved for adjustment in the execution of the decree, or of "any mesne profits or interest," (which, I apprehend, would be fully written, '' or questions regarding the amount of any mesne profits or interest''), "which may be payable in respect of the subject-matter of a suit between the date of the institution of the suit and execution of the decree, as well as questions relating to sums alleged to have been paid "in discharge or satisfaction of the decree or the like, and any other "questions arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree." In order to bring the subject-matter of the claim within the terms of section 11, it appears to me that it must come within one or other of the several clauses of the first sentence of that section, that is to say, it must be either a question regarding the amount of any mesne profits which, by the terms of the decree, may have been reserved for adjudication; or it must be a question regarding the amount of any mesne profits or interest which may be payable in respect of the subject-matter of the suit, between the date of the institution of the suit and execution of the decree; or it must be Some other question arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree. Now it appears to ma that a question arising between the parties relating to something not comprised in the decree, cannot be a question relating to the execution of the decree. As, therefore, it will not come within the general words at the conclusion of the first sentence of the section, it ought to come within some one or other of the previous clauses. Now it is not an amount of mesne profits which has been reserved for adjustment in the execution of the decree, because the decree contains no such reservation. It is not an amount of mesne profits or interest payable in respect of the subject-matter of a suit between the Gate of the institution of the suit and execution of the decree, because the decree does not make it so payable. And, moreover, the question here does not relate to an amount at all: the question which we have to decide is whether the plaintiff is to receive wasilat or No. Therefore, in no sense could this question be one of those comprised in the first clause of section 11.
6. A case precisely similar to this has been decided in the same sense by "another Bench of this Court. That case is Haramohan Chowdhrain v. Dhanmani Chowdhrain 1 B.L.R. A.C. 138.
7. The Additional Judge observes, I come to the same conclusion as "Mr. Bright has come to in regard to the construction to be put on the "order passed, which I am of opinion was meant to include a decree for mesne profits for the land decreed." But it will not do to say merely that a decree was meant to include something; because the Procedure Code, in section 189, says that the decree, in addition to other matters, shall specify the relief granted, and I apprehend that that which is not clearly specified in the decree, is not given. For these reasons, I think the plaintiff cannot recover wasilat in execution of the decree, when it is not expressly given in the decree, and consequently the decision of the Court below must be set aside with costs.
Markby, J.
8. I am of the same opinion. With regard to the first ground upon which we are asked to say that the plaintiff (judgment-creditor) was entitled to recover mesne profits, namely, on the words of section 11, Act XXIII of 1861, I do not think it necessary to add any thing to the observations made by Mr. Justice Jackson and by Mr. Justice Phear and Mr. Justice Hobhouse, in Haramohan Chowdhrain v. Dhanmani Chowdhrain 1 B.L.R. A.C. 138. I quite concur in thinking that section 11 does not enable any party to recover in execution any thing except that which has been given by the decree. So that the question cornea back to this; what has been given by this decree? As I understand the argument, it is that, inasmuch as the appellate Court gave a decree in the form "appeal decreed," it must be assumed that that Court gave to the appellant everything he asked. I think it would be quite impossible to put any such interpretation as that upon those words. I think we are justified in this case in going to the length of saying that there was no decree which could be executed at all. How far, if the decree is ambiguous as to the relief which it awards, evidence may be given to show what the Court intended, is perhaps a question of difficulty, and one which it is not necessary to go into; because so far from there being here any ambiguity, there was no decree at all. The only point upon which I have felt the smallest doubt is as to whether or no the conduct of the defendant in the subsequent suit in having, as I think it pretty clear he had, contended that mesne profits were given in the first suit could in any way affect the position of the parties. But upon consideration I think it clear that it could not. I think it a clear principle of law that parties cannot, either by special agreement, or by any conduct of their own, invoke the process of the Court in execution. Process in execution must always be granted by the direct act of the Court itself. And it appears to me that precisely upon the same principle that parties are prohibited from invoking the process of the Court de novo either by agreement or by their conduct, they are also prohibited from extending in like manner the relief which the Court has chosen to award. Therefore, all questions as to the conduct of the parties, where they are seeking to execute a decree of the Court, are, in my opinion, immaterial in considering what is the effect of the decree.
