Kuriyan and Another vs Peethambara Menon and Others

Velu Pillai, J

The respondents obtained a decree for recovery of possession with mesne profits, past and future. The final decree was of the High Court and was dated the 16th February, 1953. In due course of execution, the respondents took delivery of possession of the properties. Afterwards, on the 27th October, 1955, they presented execution petition 279 of 1955, for the realisation of mesne profits (and costs and this was dismissed on the 20th February, 1956. The present execution petition was filed also for the realisation of mesne profits and costs on the 17th February, 1960, that is, more than three years after the disposal of the earlier application. On that ground, the execution petition was contended for the appellants-judgment-debtors, to be barred by limitation. The respondents claimed exclusion of a period of six months u/s 3 of Act III of 1956 and of a like period of '' six months u/s 3 of Act XXXI of 1958. The claim of the respondents was accepted by the District Judge. In this appeal, it was not disputed by the appellants, that a period of six months has to be excluded u/s 3 of Act III of 1956. What arises for decision is, whether the respondents are not entitled to a similar exclusion under Act XXXI of 1958. The relevant part of Section 3 of that Act are as follows:

3 (1) No application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act.

X X X X X

Explanation 11--For the purposes of this Act, a decree shall be deemed to be a decree in respect of a debt notwithstanding that other reliefs are granted in such decree

Provided that a decree for possession of land shall not be deemed to be a decree in respect of a debt by reason merely of mesne profits being also included in such decree.

Explanation 111--Nothing in this section shall debar a decree holder from enforcing reliefs other than in respect of a debt; where the decree contains independent refers

Under the above, the exclusion can only relate to the execution of a decree in respect of a debt. Learned counsel for the appellants argued, that although Explanation II has provided that a decree shall he deemed to he a decree in respect of a debt notwithstanding that other reliefs are granted in it, under the proviso to it, a decree for possession of land, as the present decree is stated to tie, is not to be deemed to be a decree in respect of a debt merely because mesne'' profits are also allowed by it; in other words, the argument was, that although in the decree under execution mesne profits have been included, the decree is still a decree for possession only, within the meaning of the proviso and not a decree in respect of a debt and therefore the exclusion u/s 3 cannot be allowed. To our minds, it seems, that a decree for possession with mesne profits has to be Construed for the purpose of Explanation II and the proviso to it, to be a decree for possession of land and to be a decree for mesne profits. The proviso applies to a decree for possession and has been enacted to make it clear, that such a decree is not to be treated as a decree for a debt by the inclusion of mesne profits. A decree for possession is executable in spite of Section 3, white the decree for mesne profits though a part of the entire decree being obviously not a "decree for possession" and being a decree for a debt, is not executable for the period specified in that Section. Whatever doubts may arise on the construction of the proviso are removed by the enactment of Explanation III, which provides that a decree-holder is not debarred from enforcing reliefs other than in respect of a debt, where the decree contains independent reliefs. Obviously a decree for possession and for measne profits contains independent reliefs, namely, recovery of possession and recovery of mesne profits. According to this Explanation, the decree-holder is not debarred during the period from enforcing the relief for recovery of possession, apart from the relief for recover of mesne profits. This is the meaning of Explanation II and the proviso, read and understood in the light of Explanation III. After all, this is a case in which possession had been, recovered even before Act III of 1956. It is clear that the decree for mesne profits being a decree in respect of a debt, no application for execution could have been presented during the period specified in Section 3 of Act XXXI of 1958.

We do not find anything in Leela v Ramachandran Nair (1960 KLT 602) which supports the appellants. In that case it was held that an application for execution of a decree for possession lay within the period of six months u/s 3 of Act XXXI of 1958; the decree for recovery of mesne profits had been stayed already, u/s 4 of Act I of 1957. The appeal is devoid of merit and is dismissed with costs.