N. Narayanan Bhattathirippad vs Lonappan and Others

Vithayathil, J.—The assignee-decree-holder in O.S. No. 876 of 1122 of the Trichur Munsiff''s Court is the Appellant in S.A. No. 833 of 1952. He is the assignee-decree-holder in O.S. No. 874 of 1122 also and is the Appellant in S.A. No. 834 of 1952. The second Respondent in both the appeals is the judgment-debtor in the two cases. The first Respondent is his surety.

The suits were for recovery of properties with past and future pattom. Both the decrees are dated 25-2-1123. The decrees were for recovery of properties with arrears of pattom and future pattom. It was not stated in either of the decrees that future pattom was allowed only for three years from the date of the decree.

The Appellant obtained an assignment of the decrees from the respective decree-holders. While he was executing the decrees; Proclamation VI of 1124 (Cochin) came into force. Under that Proclamation eviction of holdings was stayed. When the assignee-decree-holder applied for execution of the decree for arrears of pattom and future pattom the surety (first Respondent) raised various objections.

One of the objections was that the assignee-decree-holder was not entitled to execute the decree for future pattom from the date of the Proclamation since eviction was stayed by the Proclamation. The objection was overruled by the execution Court. In appeal filed by the surety the District Court upheld the decision of the execution Court.

But it was contended for the surety that in any case the assignee-decree-holder was not entitled to claim in execution future pattom for more than three years from the date of the decree. This contention was upheld by the District Court. This is the only question urged in the second appeals.

According to the Appellant, so long as it is not stated in the decree that future pattom is allowed only for three years from the date of the decree, the execution Court cannot go behind the decree and restrict the claim for future pattom to three years from the date of the decree.

According to the first Respondent, the Court has no jurisdiction to award future pattom for more than three years from date of the decree and the decree should be construed in the light of Order 20 Rule 12 Code of Civil Procedure.

Order 20 Rule 12 provides:

(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree.

(a) for the possession of the property;

(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits;

(c) directing an enquiry us to rent or mesne profits form the incaution 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.

(2) where an enquiry is directed under Clause (b) or Clause (c) a final decree in respect of rent or mesne profits shall be passed in accordance with the result of such enquiry.

It was argued for the first Respondent that, although it is not expressly stated in the decree that future rent from date of the decree is allowed only for three years, the decree should be construed with reference to the provision contained in Order 20 Rule 12(1)(c)(iii) and that provision should be read into the decree.

According to the Appellant, the execution Court is bound to construe the decree as it is and is not competent to go behind the terms of the decree even if the terms are opposed to the provisions of the Code.

There is nothing in the decree to show, that the Court intended to award future pattom for more than three years from the date of the decree. The provision in Order 20 Rule 12 relating to the awarding of future pattom is only an enabling provision. It is intended to avoid the necessity of fresh suits being instituted for the realisation of rent or mesne profits that accrue due for a specified period from the date of the decree allowing recovery of possession of property.

When the Code conferred this power on the Court it also placed a limitation on the power with regard to the period for which a decree for future rent or mesne profits can be given. In the case of a decree coming within the purview of Order 20 Rule 12 the Court has jurisdiction to award future rent or mesne profits only for three years from the date of the decree. It has also to be presumed that the decree was passed in accordance with the above provision.

The question came for consideration before the Bombay High Court in ''Uttamram v. Kishordas'' 24 Bom 149 (A). In that case also no period was mentioned in the decree for which future mesne profits were awarded. Parsons and Ranade JJ., held that the decree could not be construed as giving the Plaintiffs mesne profits for a period longer than what the law allowed the Court to give Parsons J., observed:

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

The same view was taken by that Court in ''Narayan v. Sono Sadashiva'' 24 Bom 345 (B).

In Godavarti Raja Vs. Uttaradi Matam Sri Ramachandraswami Varu and Another, which was a decision by Wadsworth and Patanjali Sastri JJ., it was held that in a case in which the decree provided for future mesne profits without specifying any period the decree must be read as one providing for mesne profits till delivery of possession subject to the statutory limit of three years.

In ''Sahijram Rupchand v. Alu Tundu'' AIR 1942 Sind 60 (D), Davis C.J., and Weston, J. followed the decision in ''24 Bom 140 (A)'', and held that a decree providing for future means profits without specifying the period for which mesne profits were awarded should be read in the light of Order 20 Rule 12, CPC including the provisions of Sub-rule (1)(c)(iii) of that Rule. To the same effect is the decision of the Calcutta High Court in ''Trailokya Nath v. Jogendra Nath'' 35 Cal 1017 (E).

The question was considered by the Travancore High Court in ''Sadasivan v. Narayana'' 1945 Trav LR 715 (F). Krishnaswamy Iyer C.J., and Nokes J., held that a decree awarding future mesne profits should be construed with reference to the provisions contained in Order 20 Rule 12 and that even if the decree did not specify the period for which future mesne profits were allowed the execution Court should construe the decree in the light of the restriction imposed by Order 20 Rule 12(1)(c)(iii).

Learned Counsel for the Appellant relied on the decision of this Court in ''Krishnan Krishnan v. Kandan Velu'' AIR 1955 Trav-C 233 (G). That was a case of a compromise decree under the terms of which the decree-holder was allowed to recover future rent till recovery of possession of the property.

Kumara Pillai J., held that the decree being one passed under Order 23 Rule 3 the provisions of Order 20 Rule 12 would not apply to the case and that the decree-holder was entitled to execute the decree according to the term of the compromise. That decision cannot apply to this case. Here, the decrees were admittedly passed under Order 20 Rule 12, Code of Civil Procedure.

Reliance was also placed on the decision of the Cochin High Court in ''Rama Iyer v. Govindanunni Kartha'' 29 Cochin 519 (H). It was held in that case that

the executing Court has only to execute the decree according to its terms even though the mortgage decree which ought to have followed the form prescribed by the CPC erroneously gave at once a personal remedy against the Defendant.

This decision also has no application to the present case in which the question is really one of construction of the decree. According to the decisions referred to above, the decrees in these cases have to be read as containing the period of three years prescribed under Order 20 Rule 12(1)(c)(iii). There is, therefore, no question of the executing Court going behind the terms of the decree.

For the reasons stated above, I hold that the assignee-decree-holder can realise in execution future pattom only for three years from the date of the decree. This does not, however, mean that he cannot file a fresh suit for realisation of the pattom that accrued due after expiry of three years from the date of the decree.

This decision can in no way be a bar to his instituting such a suit. With this observation, the second appeals are dismissed with costs.