How to determine scope of authority of power of attorney?

Mt. Karam Bibi having withdrawn her appeal we are, therefore, left only with the fourth decree-bolder, Mohammad Hussain who was one of the Original decree-holders and is still alive. This Mohammad Hussain had given a comprehensive power of attorney to Ata Mohammad, when instituting the original suit. This power of attorney is still on the record and it shows that: Ata Mohammad was empowered to file appeal, take out execution and conduct all other necessary proceedings arising out of the litigation. I do not see why this power should not be held to be sufficient to enable Ata Mohammad to prosecute the execution application, which is now under appeal on behalf of Mohammad Hussain. The learned Subordinate Judge has held that when the power was executed, the parties could not possibly have in mind the possibility of any question of mesne profits arising out of a stay order by the Chief Court and hence the original power of attorney was not sufficient for the purposes of the present application. It is true that powers of attorney have to be construed strictly, but when the power of attorney in favour of Ata Mohammad authorized him to take all necessary proceedings in the litigation, I do not see any adequate grounds for holding that the present application does not fall within the scope of that document. No authority in point has been cited. I must accordingly dissent from the view of the learned Senior Subordinate Judge on this point.

IN THE HIGH COURT OF LAHORE

Decided On: 08.11.1932

Appellants: Mt. Karam Bibi and Ors.
Vs.
Respondent: Mehr Ali Khan and Ors.

Citation: AIR1933Lah876

Bhide, J.

1. This appeal arises out of execution proceedings relating to the realization of mesne profits of certain land. The material facts bearing on the present appeal are briefly as follows: A decree in certain specified shares was passed in favour of four persons, viz. Mt. Karam Bibi, Mohammad Abdulla, Mohammad Hussain and Khair Din. During the pendency of the appeal from the decree in the Chief Court, an application was made by the judgment-debtor for stay of execution, and the application was granted by that Court in the following terms by order dated the 5th January 1917: "Execution for possession will be stayed only on the petitioner giving security for mesne profits". Execution was accordingly stayed. The decree of the Court of first instance was eventually confirmed by the High Court on 30th November 1922. On 19th January 1923 the first application for execution of the decree was made. This application, however, did not contain any prayer for realization of mesne profits with which alone we are concerned in appeal. For the purposes of this application a transfer certificate was obtained for taking proceedings in the Gurdaspur district against the defendants who were residing there. The second application for execution was made on 21st November 1923. In pursuance of this application Mohammad Hussain and Akbar Ali (a son of Khair Din, decree-holder, who had died in the meantime) were put in possession of certain property in the Lyallpur district. This application too did not contain any prayer for realization of mesne profits. The third application for execution was made on 19th December 1925. In this application prayer was made for the first time for realization of mesne profits. The application also asked for recovery of costs. This application was, however, dismissed in default on the same day. A further application to the same effect was made on 21st December 1925. Sheikh Abdul Aziz, Senior Subordinate Judge, Lyallpur, before whom, this application came, held that as a transfer certificate for recovery of costs had been already issued for the Gurdaspur district the application could not be entertained. The application was accordingly dismissed on 19th April 1926. The fifth application for execution is dated 10th December 1926, but was actually presented in Court on 5th January 1927. This application was also for recovery of costs and mesne profits. Various objections were raised by the representatives of the judgment-debtor (who had died in the meantime). The learned Subordinate Judge held that the application for execution was not duly presented on behalf of all the decree-holders, that mesne profits could not be realized by an application in execution proceedings as they were no part of the original decree in this case, and that the application was in any case time-barred. The application was accordingly dismissed and it is from this decision that the present appeal has been preferred.

2. During the pendency of the present appeal Mt. Karam Bibi withdrew her claim and her appeal was accordingly dismissed on 29th May 1930. A preliminary objection was raised on behalf of the respondents that the original application for execution out of which the present appeal has arisen was on behalf of Mt. Karam Bibi only and she having withdrawn her appeal, the other appellants have now no locus standi to maintain this appeal. This objection is connected with the learned Senior Subordinate Judge's finding that the application for execution before him was not duly presented. This finding is attacked by the appellants in this appeal. It will be convenient to dispose of both these points together. I have noted above that there were four decree-holders, viz., Mt. Karam Bibi, Mohammad Abdulla, Mohammad Hussain and Khair Din. All these persons had executed powers of attorney of comprehensive character in favour of one Ata Mohammad empowering him to conduct the suit and take all necessary proceedings arising out of it, e.g., appeal, execution, etc. These are on record of the suit. This Ata Mohammad had also engaged Mr. Abdul Karim as a pleader in the trial Court. But his power of attorney is not now forthcoming and its precise scope cannot be ascertained. The appeal in the High Court from the original decree was filed by Ata Mohammad. Mr. Abdul Karim, however, appeared in the High Court only on behalf of Akbar and Asghar, sons of Khair Din, one of the decree-holders who had died. The other decree holders had apparently engaged another counsel. The power of attorney in favour of Mr. Abdul Karim shows that he was engaged by AKbar and Asghar for appearance at Lahore only apparently only for the purposes of the appeal then pending. Bearing in mind the above facts, we have to see whether the execution application dated 10th December 1926, with which we are concerned was properly presented. That application is rather clumsily drafted. The application begins with the words "I, Mt. Karam Bibi, etc., etc.," and gives the impression that it is on behalf of Mt. Karam Bibi alone. But in the latter portion all the decree-holders are mentioned. The application was signed by Ata Mohammad, as a "mukhtar" for all the decree-holders. It was also signed by Mr. Abdul Karim., Advocate. Two of the original decree-holders, viz., Mohammad Abdullah and Khair Din are dead and Ata Mohammad admittedly holds no power of attorney from their legal representatives. It was conceded by the learned Counsel for the appellants that Ata Mohammad's power of attorney could not enable him to prosecute the execution on behalf of the legal representatives of the deceased decree-holder without a power of attorney from the legal representatives themselves. As regards Mr. Abdul Karim, advocate, his power of attorney filed in the original suit is missing and 'its precise scope is unknown. His power of attorney in the High Court was limited to appearance at Lahore and could not consequently be taken to give him any authority to take execution proceedings in the Senior Subordinate Judge's Court at Lyallpur. For some reason or other no fresh power was taken by Ata Mohammad or Mr. Abdul Karim from the legal representatives. It seems therefore clear that neither Ata Mohammad nor Mr. Abdul Karim had any authority to prosecute the execution application in the Court of the Senior Subordinate Judge on behalf of the legal representatives of the two deceased decree-holders, Mohammad Abdullah and Khair Din. It follows also that they have no power to prosecute the appeal on their behalf.

3. Mt. Karam Bibi having withdrawn her appeal we are, therefore, left only with the fourth decree-bolder, Mohammad Hussain who was one of the Original decree-holders and is still alive. This Mohammad Hussain had given a comprehensive power of attorney to Ata Mohammad, when instituting the original suit. This power of attorney is still on the record and it shows that: Ata Mohammad was empowered to file appeal, take out execution and conduct all other necessary proceedings arising out of the litigation. I do not see why this power should not be held to be sufficient to enable Ata Mohammad to prosecute the execution application, which is now under appeal on behalf of Mohammad Hussain. The learned Subordinate Judge has held that when the power was executed, the parties could not possibly have in mind the possibility of any question of mesne profits arising out of a stay order by the Chief Court and hence the original power of attorney was not sufficient for the purposes of the present application. It is true that powers of attorney have to be construed strictly, but when the power of attorney in favour of Ata Mohammad authorized him to take all necessary proceedings in the litigation, I do not see any adequate grounds for holding that the present application does not fall within the scope of that document. No authority in point has been cited. I must accordingly dissent from the view of the learned Senior Subordinate Judge on this point.

4. The learned Counsel for the respondents urged that the provisions of Order 21, Rule 15, Civil Procedure Code, were not complied with and hence the application was not in order. This argument really rests on the assumption that the application was made by Mt. Karam Bibi alone in the interests of all the decree-holder. But, on a persual of the application as a whole, it seems, to me that the application purported to be on behalf of all the decree-holders. If the application was by Mt. Karam Bibi alone, some reason would have been given for her doing so, but no such reason is given, nor is Order 21, Rule 15, Civil Procedure Code, mentioned anywhere in the application. In the heading no doubt Mt. Karam, Bibi's name is mentioned, but the word "etc", occurring elsewhere appears to have been omitted there by mistake. The use of the words "decree-holders" in the plural throughout in the remaining part of the application together with the signature of Ata Mohammad as a Mukhtar for all the decree-holders, leaves no doubt, to my mind that the application purported to be on behalf of all the decree-holders. Ata Mohammad had been conducting proceedings for all the decree-holders on the strength of the power of attorney and there was no reason why he should have taken out execution on behalf of Mt. Karam Bibi alone, if he had done as he would have described himself as a mukhtar for Mt. Karam Bibi alone and not on behalf of all the decree-holders. It is not true that one of the original decree-holders, viz. Khair Din was dead but the necessity of obtaining a fresh power of attorney was probably overlooked or Mr. Abdul Karim may have thought that he having been engaged by Khair Din's legal representatives in the Chief Court could also present the application on their behalf. However that may be, as I have stated above, it seems to my mind clear that the application really purported to be on behalf of all the decree-holders and it is unnecessary to discuss the provisions of Order 21, Rule 15, of the Civil Procedure Code. As Ata Mohammad had a power of attorney of a comprehensive character from Mohammad Hussain, I hold that the execution application as well as the present appeal were properly instituted on behalf of Mohammad Hussain and can proceed so far as his share is concerned. On behalf of the respondents it was urged that execution was not as a matter of fact stayed as a result of the High Court's order as no security bond was filed by the judgment-debtor. There is, I think, no force in this contention. It is true that the security bond is not now forthcoming; but the evidence discussed by the learned Senior Subordinate Judge leaves no doubt that the security was given and that it ,was as a consequence of the High Court's order that execution proceedings were stayed.

5. The next point for consideration in this appeal is whether the mesne profits can be realized by an application in execution or whether a separate suit is necessary as held by the learned Senior Subordinate Judge. The learned Senior Subordinate Judge has relied upon Khazan Singh v. Khushal Singh (1902) 29 P.R.1902, [Ghulam v. Mahomed (1902) 25 P.R. 1902, seems to have been referred to by mistake instead of Khazan Singh v. Khushal Singh (1902) 29 P.R.1902 in the judgment of the learned Senior Subordinate Judge] a Single Bench ruling of the Punjab Chief Court under the Code of Civil Procedure of the year 1882. That ruling seems to be opposed to the view taken by this Court in Jawala Singh v. Sunder Singh A.I.R.1927 Lah.346, the facts of which were practically on all fours with the present case. It was held in that ruling that mesne profits can be realized by an application to the executing Court. Allah Din v. Chiragh Din (1921) 63 I.C.43, a Division Bench ruling of this Court also seems to support the same view.

6. The last point for decision is the question of limitation. In the Court, below it was apparently urged that there was no period of limitation for ascertainment and realization of mesne profits. This position was not, however, taken up before me. It was urged before me that limitation is governed by Article 181, Schedule 1 of the Indian Limitation Act, and that the period of limitation runs from the date on I which the possession was delivered, i.e. 10th December 1923. In support of this contention the following authorities were relied upon: A.I.R.1926 Lah.685, Gangadhar v. Lachman (1910) 6 I.C.125 and A.I.R.1928 Pat 598. On behalf of the respondents, it was argued, that these rulings referred to restitution, under Section 144, Civil Procedure Code. But I do not think that that would make any difference as far as the principle is concerned. Although the present case would not strictly come under Section 144, the restitution must be held to be ordered under Section 151 Civil Procedure Code, [Cf. Allah Din v. Chiragh Din (1921) 63 I.C.43 so that the application would still he one under the Code of Civil Procedure and Article 181 would apply. The period of limitation would runt; from the date of delivery of possession as held in A.I.R.1928 Pat.598as the mesne profits due could not be ascertained till that date. But the present application, though it is dated 10th December 1926, was actually presented on 5th January 1927. Possession having been delivered on 10th December 1923, the period of limitation available under Article 181, had thus expired before this application was presented. The learned Counsel for the appellants had to concede this point but he urged that the present application, should be looked upon as a continuation of the application dated 21st December 1925, which also contained a. prayer for ascertainment and realization of mesne profits, but was dismissed only on the technical ground that a transfer certificate had already been issued to a Court at Gurdaspur for execution of the decree. But the fact remains that the application dated 19th December 1925 was dismissed on 19th April 1926, and the proceedings were not merely stayed. It appears further that the question whether execution should proceed with respect to mesne profits was also considered by the learned Subordinate Judge who passed the order dated 19th April 1926 and it was held by him that he had no jurisdiction to proceed m the matter as long as execution was going on in the Gurdaspur District. This order may or may not be correct, but the fact remains that the appellants did not get it set aside. Under the circumstances, I do not see how the application presented on the 5th January 1927 can possibly be held to be continuation of the application dated 21st December 1925. The application dated 5th January 1927 was time-barred according to the very authorities relied upon by the learned Counsel. Consequently the appeal fails. In view of all the circumstances I leave the parties to bear their costs.

Print Page