Mohamed Rowther vs Velayudhan

Velu Pillai, J.—The matter arises in execution of a decree which the appellant in second appeal had obtained against the respondent for recovery of possession of property with mesne profits. The decree provided that the appellant do recover possession with mesne profits at the rate of Rs. 5/- per mensem from the 1st Chingom, 1125, till the date of deposit by him of the value of improvements and thereafter at the rate of Rs. 10/- per mensem. Clearly, the decree failed to fix the limit of time up to which mesne profits were realizable by the appellant. The relevant part of Order XX Rule 12 reads as follows:

R. 12 (I),... the Court may pass a decree-

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(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

Apparently in this case no enquiry was needed, as on the materials before it, the court was able to determine the rate at which mesne profits were payable. In execution, when the appellant sought to realize mesne profits till the date of delivery of possession of the property which took place more than three years after the date of the decree, the respondent raised the objection, that no mesne profits after the period of three years could be realized by the appellant. This objection was repelled by the execution court, but was accepted by the District Judge on appeal.

In this court learned counsel for the appellant contended for the application of the principle, that the execution court is not competent to go behind the terms of the decree, and relied in support of it, on Chittorui Subbanna v. Kudapa Subbanna (A. I. R. 1959 Andhra Pradesh 607) and Palai Central Bank Ltd. v. C. Ramaswami Nadar (1959 K. L. T. 1 : 1959 K. L. J. 20). The respondent''s learned counsel was prepared to contend for the position, that even if the award of mesne profits by the decree is in contravention of Order XX Rule 12 the execution court can decline to order the realization of the excess mesne profits. I do not think I am called upon to decide this point for the purpose of this appeal, for, as observed, this is a case where no limit of time has been set by the decree up to which alone mesne profits could be realized. For this reason too, the principle that the execution court is not competent to go behind the decree is in no way attracted. To me it appears, that the question in the present case is only one of construction of the decree, as to what the court really intended to do or might be deemed to have done at the time of passing the decree. The court must have intended to conform to the law as enacted in Order XX, Rule 12. The principle is stated thus, in Uttamram v. Kishordas (I. L. R. 24 Bom. 149):

The decree may be supplemented by the law on a point upon which it is silent, but we cannot introduce into it a provision which would be contrary to the law and ultra vires on the part of the court pronouncing it.

This was the view taken by the Travancore High Court in Govindan Sadasivan v. Raman Narayanan (1945 T. L. R. 715) and later of the Travancore-Cochin High Court in N. Narayanan Bhattathirippad v. Lonappan (A. I. R. 1956 T. C. 103). The decisions are almost conclusive on this point, in a case where the decree is silent as to the period during which mesne profits are realizable. For these reasons, the second appeal is without merit and is dismissed with costs.