Lakshmana Nadar vs Peruma Pillai

The Plaintiff, mortgagee, in this case had obtained a decree for money due under the mortgage. The mortgagor wanted to discharge the debt u/s 8, 9 and 15, Debt Relief Act. He was making the deposits and, while doing so, he put in an application for delivery of possession of the property to him. It is seen that Defendant 4 was given delivery of possession on 30-7-1117. The debtor, however, continued to deposit the instalments without making the three consecutive defaults. The Plaintiff subsequently filed a petition for redelivery of possession, as he was entitled to retain possession of the same till the last pie due under the Debt Relief Act was paid to him. That he was entitled to retain possession of the property till the entire amount due to him was paid is beyond any controversy; and that was the trend of the decisions reported in - Parvathi Pilla v. Govindan 32 Trav LJ 931 (A); and - Krishna Iyer v. Chockalingom Pillai 33 Trav LJ 583 (B) and - Yovan Nadan v. Swaminatha Nadan 17 Trav LT 22 (C). Thus, the order allowing Defendant 4 to get possession in 1117 was wrong. A petition to review the order for giving delivery was dismissed: and, against that, ''C.R.P. No. 1219 of 1121. (D)'' was filed in this Court.

The debtor agreed in this Court to pay the entire debt within fifteen days; and so the order of the lower Court was set aside and that Court was directed to reconsider the whole matter. The debt was not, however, paid within fifteen days; but the Plaintiff''s petition remained pending in the lower Court till it passed the present order, on 23-5-1124.

The lower Court ordered that Defendant 4 was a defaulter as the first two deposits made by him were short by 4 Fs. each, since the amount due for each instalment had been fixed at 574 Fs. in the order dated 29-3-1117. Since this deficiency was not made out, it was held that the debtor had forfeited his rights under the Debt Relief Act. But it was seen that, while determining the amount which the debtor was to pay under the provisions of Section 9, no time limit, within which the deficiency was to be made up, was fixed. This was a fatal mistake; and so, even if the deficiency was not made up by the debtor, he would not lose the benefits under the Debt Relief Act. The Plaintiff''s learned Advocate had also conceded that this portion of the order of the Court below was wrong. So that finding is set aside.

While taking accounts, it was seen that on 3-4-1123 the balance due was 610 Fs. 1 Ch. 7 Cash for entering satisfaction of the decree. Since this amount had not been deposited it was contended in the lower Court that the debtor would lose all benefits under the Acts. At the time of the argument it was conceded that, if the total amounts deposited by the debtor were taken into account, it would be seen that at the time the accounts were settled in 1123 the amount due for 15 instalments had been paid without making any three consecutive defaults till then. If that be so, it was open to the debtor to pay the balance before the last date on which the period of nine years would expire from the commencement of the Debt Relief Act. That is the decision we have given in - Idicheriya Chacko v. Rohini Channathi A. Section 477 of 1951 : AIR 1953 TC 479 FB (E)'', which we heard along with these two revision petitions. So there is no force in this argument as well.

The Court below, while finding that the mortgagor was not entitled to delivery of possession in 1117, had ordered re-delivery leaving the Plaintiff to file a separate suit for mesne profits. So far as this matter was concerned, it was clear that Defendant 4 was not entitled to get possession of the property before he discharged the entire debt. So, the direction for re-delivery could be justified. But we were told that Defendant 4 had deposited in the lower Court, on 24-11-1124, the balance found due. If that be so, that was a valid payment within nine years; and the decree has to be entered as satisfied. There is, therefore, no necessity now to order re-delivery. Anyhow, the direction of the Court below to the Plaintiff to file a separate suit for mesne profits was not the proper one. When restitution is ordered, the Court is competent to make consequential orders relating to mesne profits, which the aggrieved party is entitled to get. The Plaintiff was really entitled to get mesne profits from 30-7-1117 till 24-11-1124. It was agreed before us by both sides that the mesne profit''s might be fixed at Indian Rs. 75/- a year.

We, therefore, direct Defendant 4 to pay the Plaintiff mesne profits at the rate of I. Rs. 75/- (Indian Rupees Seventy-five) a year from 30-7-1117 till 24-11-1124. The mesne profits, thus ordered, will not carry interest till 24-11-1124. But the total amount of mesne profits, found due on 24-11-1124, will carry interest from that date at four per cent, per annum. The Plaintiff is allowed to realise the same in execution, if necessary, from Defendant 4 and the plaint schedule property.

Thus, the Revision Petition No. 546 of 1124 by Defendant 4, objecting to the finding of the lower Court that he had forfeited his rights under the Debt Relief Acts and that he is liable to surrender back the property to the Plaintiff, is allowed to the extent mentioned above. C.R.P. 657 of 1124, filed by the Plaintiffs questioning the direction in the order referring them to a separate suit for mesne profits, is also allowed by giving the direction for mesne profits mentioned above. The two Civil Revision Petitions are thus allowed to the extent indicated in this order. In the circumstances of this case, we direct the parties to bear their costs in the two revision petitions. These revision petitions happened to be heard by the Full Bench as they were ordered to be posted with ''AIR 1953 TC 479 (E)'', which had already been referred for decision by a Full Bench.