Koshy vs Koshy

S. Velu Pillai, J.—A. S. 80 and 81 of 1956 (K) are two appeals by defendant 6 and defendant 1--respectively, and are directed against a decree for mesne profits in favour of the plaintiff respondent, in execution of the decree in O. S. 48 of 1102, the suit properties, six in number, were purchased by the additional second plaintiff in that suit on Mithunam 18, 1118, who assigned his rights to the present plaintiff. The sale was confirmed on Mithunam 11, 1119, and the plaintiff was able to obtain delivery of possession of the properties only on August 27, 1951 (Chingam, 1127). The suit out of which this appeal arises, was instituted for mesne profits after the purchase in execution. Defendants 1, 4, 5 who are interested in items 1 to 3 and the 6th defendant who is interested in items 4 and 5 of the suit properties resisted the suit. The Additional District Judge by whom the suit was tried, decreed mesne profits from March 20, 1949, that is, from a date three years prior to that of the institution of the suit, till August 27, 1951. On behalf of the 6th defendant it was argued, that no mesne profits could be decreed, because there had been various proceedings in execution to set aside the sale, and the plaintiff had been negligent in prosecuting the proceedings for obtaining delivery of possession. True, after an application under Order XXI, Rule 90 had been made in O. S. 48 of 1102 and dismissed, the 6th defendant took an assignment of items 4 and 5 undertaking to deposit an amount in court to have the sale set aside, and he did make the deposit and also file an application to set aside the sale. These gave rise to various proceedings which were carried on both in the execution court and in appeal in the High Court. It is not necessary to detail them and it is sufficient to state, that finally they terminated against the 6th defendant. On behalf of the first defendant it was argued, that there having been no malice in the proceedings in execution of the decree in O. S. 48 of 1102 impeaching the sale, the claim for mesne profits has no legal basis.

To me it seems, that the matter is governed wholly by Section 65 of the Civil Procedure Code, according to which, the auction-purchaser is to be deemed to have become the owner of the property and entitled to the right, title and interest of the judgment-debtor from the date of the sale. It follows as a corollary, that he is entitled as from that date, to the profits of the property. This has been held to be the law in N.S. Subramonia Iyer v. C. Lekshmana Sastri (28 T. L. J. 345), which was followed in M. P. Philip v. Asanaru Pillai, Mytheen Kunju (31 T. L. J. 925). In Shyam Lal Vs. Sundar Lal also it was ruled, that the auction-purchaser is entitled to sue for mesne profits which accrued after the date of the sale and in Debi Prasad v. Satish Chandra ( A. I. R. 1944 Cal 328) the remedy was stated to be by way of separate suit. The decree awarding mesne profits is not open to challenge.

It was then contended for the 6th defendant, that mesne profits decreed against him at the rate of Rs. 1000/- for items 4 and 5 is excessive. In the written statement and at the trial, he took the stand that the commissioner''s report in O. S. 48 of 1102 may be accepted as the basis and it was agreed before the Judge, that the prices of the commodities had risen very much since then. The Judge therefore relied on the report only for estimating the yield ; he then ascertained the average price of the commodities for the relevant period which was about Rs. 20/- per 100 cocoanuts and Re. 1/- per 100 arecanuts. He reduced these to Rs. 15/- for 100 cocoanuts and Re. 1/- for 100 arecanuts, and found that even this worked out higher than what the plaintiff had claimed. There is therefore, no point in the argument advanced before me for the first time, that a further deduction of 10% ought to have been made relying on the decision in Kumara Kurup v. Narayan Amma (1960 K. L. T. 642). Such deduction from the amount computed on the basis of the above market rates for the commodities would still leave a balance higher than the claim made by the plaintiff. The case cited, related not to profits actually received, but to profits which could have been collected with due diligence and I do not feel called upon to decide, whether the same rule of 10% deduction could be made applicable to the present case. I do not think that a case has been made out for reducing the amount of mesne profits. The last point in this appeal remaining to be disposed of, was raised for the first defendant, that no interest on mesne profits ought to have been allowed, because mesne profits are in the nature of damages and had not been ascertained on August 27, 1951, the date on which the properties were delivered over in execution and from which interest has been decreed to run. Mesne profits, as defined by Section 2, sub-section (1), C. P. C., can take in also interest and I do not think, that the discretion of the Judge has been wrongly exercised. A. S. 80 and 81 of 1956 are both dismissed with costs.