ORDER
1. This petition for revision has been filed by Dharam Dutt Dhawan, the judgment-debtor, in the following circumstance. Dhawan and Shaikh Muhammad Ahdullah were joint authors of a book called 'New Method Matriculation Geometry'. On the 21st of December, 1937, the authors entered into an agreement with Ram Lal Suri, proprietor of the publishing firm to get the book printed, published and sold on terms given in the agreement. On partition of the country in 1947 the publisher as well as Dhawan came to India, while Mohammad Ab-dullah who was at that time in Delhi migrated to Pakistan.
Dhawan (hereinafter called the 'author') gave a notice to the publisher terminating the agreement. Thereupon disputes arose between the parties. Both proceeded to print, publish and sell the book in question. The author filed a suit for the issue of a mandatory injunction restraining Ram Lal Suri from printing, publishing and selling the book. Then (sic) a suit claiming copyright in the book and for an (sic) restraining the author from printing, publishing (sic) selling it and also for rendition of accounts. (sic) on Dhawan filed another suit for accounts of the copies of the book wrongly sold by Ram Lal Suri.
All these three suits were tried together. TheDistrict Judge, Delhi, dismissed the suits of the au-thor and decreed that of the publisher on the 28thof May, 1951. He passed a decree favour of thepublisher (1) granting him a permanent (sic)restraining the author from printing, publishing orselling the book in question, (2) directing Dhawan& other defts. -- twelve in number -- to deliver allcopies etc. of the book to the plaintiff, and (3)granting ''a preliminary decree for accounts concerning the sale of the copies of the infringing work bythe defendants.'
The decree then proceeded to appoint Shri Diwan Chand Aggarwal, Advocate, as commissioner to take accounts under the preliminary decree. Diwan alone appealed to the High Court, but the appeal was dismissed by a Division Bench of this Court on the 8th of August, 1953. Before the commissioner disputes arose as to the scope of tho accounts to be taken under the decree and he referred the dispute to the District Judge for decision. The District Judge came to the conclusion that this dispute had been, raised by Dhawan in execution pro-ceedings and that it was too late to raise the point now, and directed the commissioner not to enter into the question of expenses of publication incurred by the defendants, but should merely calculate the sale price of copies actually sold. The author being dissatisfied with this decision has filed the present revision petition in this Couit.
2.The learned District Judge has held that the proceedings initiated by the commissioner in seeking directions are in execution proceedings. This is absolutely incorrect. The decree passed in this case was partly final and partly preliminary. The preliminary decree relating to accounts has become final as the appeal against that has also been dismissed by the High Court. No final decree has been passed relating to damages as yet. The proceedings therefore that are being held by the Commissioner must be held to be proceedings in the suit and the order passed by the District Judge is an intermediary order in a pending suit.
Under Section 98, Civil Procedure Code, the preliminary decree has become indefeasible now and the rights of the parties have been settled once for all by this preliminary decree. The Court has to determine the damages to which the plaintiff is entitled before a final decree can be passed and before the suit is finally decided. The accounts are being taken for this purpose. Now, the commissioner requires directions as to the exact scope of the accounts which have to be taken by him. I therefore hold that these proceedings are in the course of the suit and not in that of execution.
3.The learned counsel for the petitioner has argued that the learned District Judge was in error in issuing directions to the commissioner to the effect that he should not enter into publication expenses and that he should merely calculate the sale price of the copies of the infringing work actually sold by the defendants. The learned counsel has rgued that directions in the preliminary decree for accounts concerning the sale of the copies of the infringing work by the defendants should be construed to mean that alt expenses of printing, publishing and sale are to be taken into consideration and the publisher would be entitled only to the net profits earned by the author by printing, publishing and selling the book in question.
In support of his argument he has invited my attention to the pleadings in the suit and 'has also relied upon certain English and Indian decisions. His main argument, however, is that this relief has been granted to the publisher under Section 7 as distinct from Section 6 of the English Copyright Act of 1911. Strictly speaking, this matter should be decided by the trial Court after receiving the commissioner's report and objections thereon. The counsel for both parties, however, were anxious that I should decide this matter at this stage and considering that this course will save considerable expenses and time of the parties, I have acceded to this request.
4.Now, by virtue of Section 3 of Act III of 1914 the English Act with specified modifications has been extended to India. Section 6 (1) and Section 7 of the English Act lay down the remedies that are available to a party whose copyright has been infringed. Section 6(1) reads:
'Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts and otherwise, as are or may be conferred by law for the infringement of a right.' and Section 7 reads:
'All infringing copies of any work in which copyright exists, or of any substantial part thereof, and all plates used or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of the possession thereof or in respect of the conversion thereof.'
The scope of these remedies has been determined in Sutherland Publishing Company, Limited v. Caxton Publishing Co. Ltd. 1936-1 Ch. 323 (A) and this decision on appeal has been affirmed by their Lordships of the House of Lords (vide Caxton Publishing Co. v. Sutherland Publishing Co. 1939 AC 178 (B). It was held in (1936) 1 Ch. 323(A), that the wrongs for which Section 6(1) and Section 7 are remedies are different and therefore the remedies provided are also different. It was accordingly held that the remedies under Section 6(1) and Section 7 must be considered to be cumulative and not alternative.
Lord Wright M.R. laid down that Section 6 deals with remedies, legal and equitable, appropriate to the infringement of the incorporeal right of copyright defined by Section 1, Sub-section (2) of the Act, while Section 7 gives a distinct right to claim in detinue or for damages in conversion in respect of the infringing copies which are by the section deemed to be the property of the owner of the copyright. In the present case the author has printed the book while the copyright vested in the publisher. It is nobody's case that by printing this book the author has reduced the marketable value of the copyright. Therefore, it is correct that the preliminary decree for accounts relates to 'accounts for conversion under Section 7 of the Copyright Act. This, however, does not conclude the present case.
5.Under the judgment and decree the publisher has been held to be entitled to receive damagesfor conversion of books sold by the author and theother defendants. It is well settled that damagesfor conversion are to be calculated at the time ofconversion. Now, conversion takes place when aparty deals with goods in a manner inconsistentwith the rights of true owner. In the present, casethere is no finding or discussion in the judgment ofthe District Judge nor that of the High Court as towhen conversion in the present case can be said tohave taken place so as to give some indication as tothe sense in which the words of the decree, whichrequire construction in the present petition havebeen used.
On the finding that the publisher's goods have been converted by the author and other defendants by selling the book, it is clear that the publisher is entitled to a just sum by way of indemnity to make good the loss suffered by him by reason of the wrong done to him. This amount has, according to the decree, to be determined after taking accounts -concerning the sale of the copies of the infringing work by the defendants. There is nothing in the judgment which is the basis of the decree in question to indicate whether the cost of printing and publishing the book incurred by the author and his associates is to be deducted from the sale price when calculating damages which the decree-holder has been held entitled to receive.
The printing, publishing and selling rights were in dispute between the parties and in view of the omission of the words 'printing and publishing' in the decree, it must be held that the decree is confined to taking of accounts relating to the sale of infringing books only. That being so, it appears to me that the judgment-debtors are entitled to get credit only for costs incurred by them in selling the infringing books and they are not entitled to get credit for printing and publishing expenses. This is also consistent with the order under which the decree-holder is entitled to get the books as well as other publishing material which are in stock with the judgment-debtors.
6. Copinger in his well known treatise on Copyright has at p. 167 stated the legal position in these words :
'Where infringing copies are in fact sold by the defendant, the value is usually assessed by reference to the sale price, but allowing to the defendant all expenses which he proves to have been properly and necessarily incurred by him after the conversion in effecting the sale in so far as these expenses would not have been incurred but for, the sale; such expenses might be the cost of binding and the cost of collection and delivery, and the expense of advertising and selling.'
That being so, I am of the opinion that the author and the other judgment-debtors are entitled to be allowed all expenses properly and necessarily incurred by them in selling the infringing books in so far as these expenses would not have been incurred but for the sale of those books. The judgment-debtors being the wrong-doers it is for them to show that they have necessarily expended the money for which they seek to get credit (vide 1939 AC 178, at p. 205 (B)).
7.I would, therefore, accept this petition only to the extent indicated above.
8. here will be no order as to costs.