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to do so. Therefore according to this section "mesne profits payable at the time of execution" must mean mesne profits which have been at that time directed to be paid by a decree of court. The two portions of this section are in direct connection with Sects. 196 and 197 of Act VIII of 1859. (Secs. 211 & 212.)

Inquiry. As to the amount of, not the right to, mesne profits. See Sec. 212.

Which the decree has made payable.-It will be borne in mind that: This section does not give a power to extend the relief granted by the decree in respect of the right to mesne profits: but only to determine questions regarding the amount thereof, when the right thereto has been ascertained by the decree. Subba Venkataramaiyan v. Subraiya Aiyar, 4 H. C. R., 257. See also Mosoodun Lall v. Bheekaree Singh and others, 6 W. R., Mis., 109; Radhabai v. Radhabai, 4 Bom. R., A. C., J., 181.

A court executing a decree has no power to assess mesne profits, unless it is ordered by the decree that the mesne profits are to be assessed in execution, and it is an essential part of a decree which orders mesne profits to be assessed in execution, to fix the period in respect of which such mesne profits are to be assessed. J. P. Wise v. Jagendro Coomar Roy and others, 11 W. R., 200.

The subject-matter of a suit.-A plaintiff, in possession under a decree for land and mesne profits, applied for further execution as to mesne profits and obtained an order from the Court of first instance (the District Munsifs Court). This order was reversed by the Appellate Court (the Civil Court), leaving it still open to the court of first instance to make a further order. Plaintiff, however, instead of applying again for execution, instituted a fresh suit for mesne profits in the Civil Court. The Civil Judge rejected the plaint :Held, that this section warranted the rejection of the plaint, on the ground that the mesne profits to which plaintiff laid claim in the suit were payable in respect of the subject-matter of the former suit. B. Lakshmi Narasimhulu v. Chatrázu Jagannadham Pantalu, 3 H. C. R., 287.

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A suit for mesné profits alleged to be due upon land between the institution of a former suit and the execution of the decree where mesne profits were claimed in the original suit and were therefore part of the subject-matter of the suit, cannot be maintained. Nárayana Aiyan and 6 others v. Srinivása Aiyan, 2 H. C. R., 435.

But where one sued for possession and mesne profits, and the suit was dismissed, and the plaintiff thereupon appealed on the question of possession only, and got judgment for possession only, no mention of mesne profits being made in the decree :-Held, that Secs. 2, 7, and 196 of Act VIII of 1859, and this section, were no bar to a fresh suit for the mesne profits. Protab Chundra Burna v. Rani Swarnamayi, 4 B. L. R., F. B., 113.

Expiration of three years.-Whichever event first occurs. See

Sec. 211.

Any other questions.-Ejusdem generis as the preceding. The questions must relate to the execution, not the validity or propriety of the decree. See the Pro. H. C., 7th April, 1866.

Arrears of maintenance can be recovered by process of execution in a suit in which a decree is passed providing for the payment of future maintenance. Where arrears of maintenance can be recovered by such process of execution, they cannot be made the subject of a fresh suit. Sinthayee v. Thanakapudayen, 4 H. C. R., 183.

A suit does not lie to enforce a liability specifically imposed by the decree of a civil court in the Mofussil, the right of suit in such case being taken away by this section. K. Sanjeeviah v. Nanjiyah, 4 H. C. R., 453.

The plaintiff sued to recover certain land of which the defendant obtained possession in execution of a decree in a former suit in which the plaintiff was a defendant, although it was not part of the land mentioned in the plaint or decree in the former suit. Held, that the plaintiffs suit could not be maintained, and that his only remedy for the wrongful dispossession was a proceeding under this section. Muttuvelu Pillai v. Vythelinga Pillai, 5 H. C. R., 185.

The ancestors of the plaintiff brought a suit in 1821 before the Registrar of the Adawlut Court to eject the defendants grandfather from a piece of ground. The Registrar found that the defendant was a tenant under the plaintiff at a monthly rent, and the court decreed that defendant should remain in possession so long as he should continue to pay the rent regularly, and that in default of payment the plaintiff should be placed in possession. An attempt to obtain possession in execution of that decree in 1861 failed, and the plaintiff brought a suit to recover possession with arrears of rent. Held, that this section precluded the plaintiff from maintaining the suit. Ranganasary and others v. Shappani Asary, 5 H. C. R., 375.

Between the parties.-This is a sine quâ non. Unless the question is between the parties, there can be no determination thereof under this section, which will have no application. For the meaning of the term, see the notes to Sec. 13.

In Cammerer v. Birch, 1 H. C. R., 8, the plaintiff was proceeding to enforce a judgment against the defendant, who had become insolvent, when Brooks, the official assignee of the defendant, who was not himself a party to the suit, interposed on the ground that all the defendants property had vested in him. The judge rejected the application. On appeal the High Court held that, as the official assignee was not a party to the suit, this section did not apply, and there was no appeal from the judges order. And see Greeja Bhoosun Mitter v. Kishen Kishore Ghose, 7 Suth. W. R., 221.

Or their representatives.-See Secs. 234 and 248.

The words " questions arising between the parties to the suit," cannot be limited to questions arising between those who were parties to the suit at the date of the decree, but, after decree, the representatives of a decree-holder, or the representatives of a defendant against whom an execution is sought under (old) Secs. 210 and 216 of the Code, become parties to the suit for the purpose of execution, and questions arising between them are questions arising between the parties to the suit within the meaning of this section. Buddu Ramaiya v. C. Venkaiya, 3 H. C. R., 263.

Nothing in this section, &c.-A. obtained a decree against B. for recovery of possession of certain property, and for mesne profits up to the date of the suit, but the decree was silent as to mesne profits after that time:-Held, A. was not barred by the provisions of this section from bringing a suit against B. for mesne profits during the time that A. was kept out of possession after the decree. Harmohini Chowdhrain v. Dhanmani Chowdhrain, 1 B. L. R., A. C., 138.

E-Of the mode of executing Decrees.

on re

245. The Court, on receiving an application for the execution of a decree, Procedure shall ascertain whether it contains the particulars mentioned in Sec. 235, or such of them as may be ceiving application for applicable to the case, and whether it is accompanied execution of decree. by the inventory mentioned in Sec. 236; and if such particulars or inventory are or is wanting, it shall reject the application or return it for amendment or for the addition of the inventory, as the case may be, or amend it then and there. Every amendment made under this section shall be attested by the signature of the Judge.

When the application is admitted, the Court shall enter in the register Procedure on admitof the suit a note of the application and the date on which it was made, and shall order execution of the ing application. decree according to the nature of the application: the case of a decree for money, the value of the property attached shall as nearly as may be correspond with the amount for which the decree has been made.

Provided that, in

Compare with Sec. 53.

When the application is admitted.-Provisionally, upon the initial scrutiny, as a plaint is under Sec. 58.

246. If cross-decrees between the same parties for the payment of money be produced to the Court, execution shall be Cross-decrees. taken out only by the party who holds a decree for the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

If the two sums be equal, satisfaction shall be entered upon both decrees.

Explanation I.-The decrees contemplated by this section are (a) decrees made by the same Court, (b) decrees sent to the same Court for execution, and (c) decrees of which one is made by the Court and the other is sent to the same Court for execution; but not (d) decrees of which one is made by one Court and the other is made by another Court and not sent for execution to the former Court.

Explanation II.-This section applies where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as by the assignee himself.

Explanation III.-This section does not apply unless

(e) both decrees are capable of execution at the same time;

(f) the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits; and

(g) the sums due under the decrees are definite.

Illustrations.

(a.) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this section.

(b.) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as a cross-decree under this section.

(c.) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C's decree as a cross-decree under this section.

This section, taken originally from the 9 and 10 Vict. c. 95, s. 93, which was transcribed, mutatis mutandis, into Act IX of 1850, Sec. 47, has been considerably altered in order to remove doubts occasioned by a number of more or less unsatisfactory judg ments. I fear, however, that it is still by no means difficult to mistake the intention of the Legislature in respect to cross-decrees; I confess that I cannot myself understand the most important parts of the section, to wit, Explanation II and part (f) of Explanation III.

In their Final Report the Select Committee remarked: "We have declared that the Sec. (246) relating to cross-decrees, where one of the decrees has been assigned, applies as well in respect of judgment-debts due by the original assignor as by the assignee himself, but that it does not apply unless the decree-holder in one of the suits is the judgment-debtor in the other and each party fills the same character in both suits." What is meant here by "the "decree-holder?" The original party in whose favour the decree was made? Or the party who may happen to hold the decree at the time when it is produced? Or does the term comprehend both these classes of decree-holders, or what? Then does "in one of the suits" mean in each of the suits or in either? And does "each party" mean each original party that got a decree? Or does it mean each party that produces a cross-decree?

At the common law the unwillingness felt by the courts to give effect to the assignment of choses in action affected the right to set off cross-judgments where there had been an assignment, and thus we find it ruled in a case that :-Although where one of the parties in two cross-actions has assigned his interest to a third party, there

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