Ouseph Ouseph vs Souriyar Thomman and Others

Sankaran, J.—All these six appeals are independent of one Anr. . But there is one feature common to all of them in that the claim in all the cases involves a claim arising out of a transaction in paddy. In some of the suits the claim is for the paddy due under such transactions or the value of such paddy while in the other case decrees have been passed directing payment of paddy. There is dispute between the parties as to the date on which - the paddy claimed under these different cate- gories has to be commuted into money. The question of such commutation is covered by a series of decisions of the respective High Courts of the former States of Travancore and Cochin. Tim, latest pronouncement on this question by thai Travancore High Court is contained in the Full Bench decision, in.- ''Mathunni v. Kocheeppan'' 1948 KER LR 110 (A) and the latest pronounc ment of the Cochin High Court is contained Jnr - ''Kunhan Nair v. Raman'' 37 KER 60 (FB) (B)., There is considerable divergence in the views takca'' by these High Courts on the identical question. Now that the new State of Travancore-Cochia; has come into existence as a result of the inlegra-, tion of the former States of Travancore and'' Cochin and that this High Court is the High Court for the new State, it has become necessary to review the conflicting decisions in ''Mathunni v. Kocheeppan (A)'' and ''Kunhan Nair v. Raman" (B)'' referred to above, and to give an authoritative ruling on the question as to the date on which paddy has to be valued in suits arising out of: paddy transactions and also in the case of decrees directing payment of paddy, so that one and the same rule regarding that matter may be followed by all the Courts in the State irrespective of any, consideration as to whether the transaction in question arose within the territory covered by the former State of Travancore or the former State ah Cochin. It was for an authoritative pronouncement on that question that A.S. No. 125 of 1124: was referred to the Full Bench. The order of refer- ence in that case is in the following terms:

The question raised in this appeal is as to the date at which the paddy claimed in the suit lias to be commuted into money. So far as the former State of Travancore was concerned, the prevailing view is that laid down in the latest, Full Bench decision of the erstwhile Travancore'' High Court, reported in - ''1948 Trav LR 110 (FB) (A)''. There it has been laid down that in the case of a suit, paddy will have to be valued at the rate prevailing on. the date of the suit, and in the case of execution of decrees, paddy will have to be valued at the rate prevailing on the date of the first execution petition. It appears that these rules are being applied to cases coming from the Travancore area, even after the new State of Travancore-Cochin has come into existence.

The prevailing view in Cochin, on the same question, is entirely'' different from the view taken in-''1948 Trav LR 110 (FB) (A)''. The latest decision of, the erstwhile Cochin High Court governing this matter, is the one reported in-''37 Cochin 60 (FB) (B)''. It is also a (sic)Bench decision and it is to the effect that paddy has to be commuted into money at the nirak rate prevailing on the date when such paddy became payable. This rule is being applied to cases coming from the Cochin area. We think that there is no justification for applying two rules to two sets of cases after the two States have been integrated. This Court is the High Court for the integrated State of Travancore- Cochin and there should only be one rule regarding the valuation of paddy in all eases arising within the State. The question is, which of the two conflicting Full Bench decisions nas to prevail. This question has to be authoritatively decided oy a Full Bench of three or more Judges of this Court. Accordingly this case is referred to a Full Bench for decision after finally pronouncing as to which of the two conflicting views has to prevail so far as this Court is concerned.

Since the main question raised in the referring order already referred to arises in one form or Anr. in the other appeals also, those appeals were also referred to a Full Bench for decision. It is under these circumstances that all these appeals have come up before this Full Bench. The Pull Bench has therefore first to pronounce its opinion on the questions which are common to all these cases. Thereafter, each appeal has to be taken up separately in the light of the facts peculiar to it and a decision given on the points raised in that appeal in the light of the verdict on the common questions.

The view taken in the earlier decisions of the High Courts of Travancore and Cochin was that in suits for the enforcement of claims on account of paddy, the commutation of the same into money should be at the market rate prevailing on the date of the suit. To that effect was the decision of the Full Bench of the Travancore High Court in-''Kanakku Thyapallil Eravi Padmana-bhan v. Parameswaran Pillai'' 14 KER LJ 419 (C). On the question of the valuation of the paddy directed to be paid on account of rent and mesne profits subsequent to the date of the decree, it was ruled in - ''Geevarghese Mathen v. Cherian Kurin'' 12 KER LJ 59 (D) that such paddy should valued at the market rate prevailing on the ate of the application for the execution of the decree. In - ''Keevareethu Philipose v. Eravi Vasu-devaru Nambooripad'' 13 KER LJ 43 (E) and in - ''Itty Iype v. Neelakantan Nambooripad'' 14 KER 22 (F) it was ruled that in suits for recovery of arrears of michavaram due in paddy the claim Should be valued at the market rate on the date the suit. These decisions were followed in the (Subsequent decisions also of the same High Court.

But the rule was sought to be restricted in its application when the question came up for consideration in - ''Easwara Vadivu Muthamma v. Sivagnanam Pillai'' 27 KER LJ 443 (E) where it was held that the rule enunciated in - ''14 Trav LJ 22 (F)'' and followed in - ''Chacko Joseph v. Krishna Pillai 24 KER LJ 292 (H) can be followed only in cases where an unreasonable advantage was not intended to be taken. In the still later decision in - ''Narayanaru Agnisarmaru Namboodiri v. Rama Iyer'' 1945 KER LR 712 (I) The view taken was directly opposed to the view taken in the earlier decisions. In that case it was definitely ruled that the conversion rate must be the rate prevailing on the date when paddy became due and that subsequent fluctuations of he market cannot be allowed to enhance the liabilty of the Defendant or to increase the claim of he jenmi. This was the position so far as the travancore High Court was concerned when the question of valuation of paddy again came up for the consideration of the Full Bench in - ''1948 Trav LR 110 (A)''.

The view taken by the Cochin High Court in - ''Kittu Nair v. Sankaran Moossad'' 16 KER 29 (J) and in - ''Paru v. Pothayan Somayajippad'' 17 Cochin 63(K) was that in paddy claims sought to be enforced through Courts, the commutation should be at the rate prevailing on the date when the paddy became payable. This view was dissented from in the subsequent decision in - ''Kathirina v. Souriar'' 17 KER 386 (L) where it was ruled that paddy should be valued at the rate prevailing on the date of the plaint. This decision was. followed in - ''Rangaswami Ayyar v. Narayanan Unni'' 23 KER 253 (M) and in - ''Kurien v. Ithappiri'' 35 KER 713 (N). The opinion expressed by Kunjunni Raja, C.J., in - ''Paili v. Krishna Panicker'' 1120 KER 300 (O) was also definitely jn favour of the same view. In an earlier case, i.e., in - ''Kunhilakshmi Amma v. Ariyan Bhattathirippad'' 23 KER 87 (P), where the question of commutation of paddy payable under a decree came up for consideration, it was held that such commutation should be made at the rate prevailing when execution is sought.

It was after a review of all these decisions that it was ruled, by the Full Bench in- ''37 Cochin 60 (B)'' that tho correct principle to be followed is that paddy payable as mesne profits or as rent should be converted into money at the market rates on the due dates. It was subsequent to this decision that the Full Bench of the Travancore High Court considered the identical question. But the Full Bench was not prepared to accept the ruling in-''37 Cochin 60 (B)'' as correct. On the other hand, that Pull Bench was definitely in favour of the view taken in the earlier decisions of the High Courts of Travancore and Cochin and accordingly affirmed the principles laid down in - ''12 Trav LJ 59 (D)'' and in - ''14 Trav LJ 419 (FB) (C) as correct.

The view taken in - ''12 Trav LJ 59 (D)'' and in - ''14 Trav LJ 419 (FB) (C)'' and followed in - ''1948 Trav LR 110 (FB) (A)'', is sought to be rested mainly on two grounds, viz., (1) that paddy is regarded very much in the same light as currency in the State and that therefore claims for recovery of paddy in kind can be put in action in suits and enforced by a decree of Court, and (2) that a suit for recovery of paddy in kind would also come under Rule 10 of Order 20, of the CPC then in force, which corresponded to Section 213 of the Cochin that was in force earlier.

That the first ground is clearly untenable, has been explained in - ''37 Cochin 60 (FB) (B)'' by Krishnaswami Iyengar, C.J. in the following terms:

...It is impossible to recognise a currency which is different from that which is legal tender in the State. Currency cannot be created except by the authority of the Ruling Power. The mere fact that there are loans of paddy made here carrying interest also in terms of paddy, is not a sufficient reason for importing the idea of currency in dealings of this kind. Such contracts are legal and must of course be performed according to their tenor. They are, however, to be regarded as being on no higher footing than contracts in which the subject-matter is goods or commodities of other descriptions. Nor does the fact that in villages with a predominately agricultural population articles of daily consumption are obtained in exchange for paddy suffice to make paddy a valid currency.

In spite of all that can be said in favour of dealings in paddy, it cannot be said that paddy can be recognised as legal tender in the State. It is to get over this difficulty that the argument is advanced that paddy is treated as "analogous to currency" or "very much in the same light as currency". But it is obvious that, anything which is only analogous to currency or which is treated as very much in the light of currency cannot have the force of currency, which alone forms the recognised basis of exchange. Paddy cannot therefore sustain the legal concept of currency as ordinarily understood. Contractual and other claims can be enforced by the Court only through the recognised medium of exchange, viz., the currency of the State. If paddy could have the force of such currency, the liability to pay the same must also be capable of enforcement through Court at any stage without recourse to conversion into money, and no question of the time of such conversion or the rate of commutation could possibly arise. But it is agreed on all hands that paddy has to be commuted into money before the Court proceeds to enforce the claim based on it and this in fact is the strongest argument to explode the theory that paddy is treated as analogous to or very much in the same light as currency.

This position is in a way conceded even by the Full Bench in - ;1948 Trav LB 110 (A) at p. 117'' where it is observed as follows:

When it is stated that paddy is regarded both here and in Cochin "very much in the light of currency '' in the words of Chatfield, J. in,- ''14 Trav LJ 419 (FB) (C)'', or "as a quasi-cur- rency" in the words of Kunjunni Raja C.J. of the Cochin High Court, no one is trying to suggest that the paddy is legal tender in or the currency of, the State, nor is an attempt made to create a new currency without the authority oi the Ruler. All that is intended to be conveyed is that transactions in paddy take place as freexy as transactions in money, and that when paddy is borrowed, the lender is prepared to accept the repayment of the loan in the shape of paddy, in lieu of its equivalent in money.

No doubt the parties are at perfect liberty to close their transactions in paddy by payment and acceptance of paddy in kind. We are not at the question of such option to pay or to accept paddy in kind. We are concerned only with the questions as to how ''the claims arising out of such transactions could be enforced through Court when the parties have chosen to seek the aid of the Court in that matter, and this can only be done in terms of the currency of the forum. In this matter the decision in - ''1948 Trav LB 110 (FB) (A)'' has attempted to make a distinction between the two categories of paddy claims. Claim for damages for breach of contract and claim on account of mense profits are put under one category, while claim for recovery of paddy due under a bond and claim by way of rent or mischavaram are put under Anr. category, and it is stated that in cases falling under the first category the quantum of damages has to be determined by the Court and it has necessarily to do so in terms of the currency of the forum. But the matter is stated to be otherwise in respect of claims falling under the second category. There appears to be no valid and convincing reason to make such a distinction. If the claims falling under the second category could be enforced in terms of paddy as such, the claipis under the first category also should be capable of being enforced in a similar manner. The same rule must apply to claims in respect of both categories.

The circumsiance that(sic) Act (sic)of(sic) of Travancore provision had been made fixings(sic) upper limit oh the interest that could be decreed by Court under claims for money as well as for paddy, has also been relied, on in- ''1948 LR 110 (FB) (A)'', to sustain the view that padd as such could be decreed by and recovered throu Court. Clause 5 of Section 17 of that Act stated tha interest decreed-by the Court should not exceed the principal if the claim be for paddy or grain and a moiety of the principal if the claim is for money. A similar provision had been made in Section 21 of Act 4 of 1010 of Travancore limiting the interest that could be allowed subsequent to the date of the decree. That section stated that the interest on the principal subsequent to the date oi decree shall not exceed half the principal amount where it is a money claim, and tliat such interest shall not exceed the principal where the claim is for grain. These provisions only indicate that statutory recognition had been given for transactions in paddy and other kinds of grains'' and the Legislature thought it fit that the interest recoverable under such transactions should be regulated and restricted just as in the case of money transactions.

All the same it cannot be said tnat paddy and other grains referred to in these Acts were recognised or accepted as part of the currency of the State or that the claims arising out of transactions in these grains could be enforced through Court by recovery in kind and payment to to party entitled to the same. Another significant fact about these two statutes is that they did not place paddy on a higher footing than other varieties of grain. It would be preposterous to contend that all the different varieties of grain and other commodities in which there may be frequent dealings between the citizens of the country should be deemed to partake of the nature of the currency of the State so that the claims arising out of such transactions could be satisfied through Court by recovery in the same commodity.

Such a position will not also gain any strength by referring to the Articles of the Limitation Act governing suits for recovery of money and paddy. Article 105 of the Travancore Limitation Act (Act 6 of 1100) prescribes a period of six years for suit for money or paddy due on a bond, the period- being computed from the date of the bond. Artie of the same Act relating to suits for recovery of money or paddy due under a hypothecate bond or to enforce payment of money or custo(sic)mary dues charged on immovable property, prescribes a period of 12 years from the date which the money or paddy sued for becomes due. Article 120 relates to similar bonds where payment in instalments has been stipulated for. There is nothing in these Articles to indicate that when the claim is put in suit, satisfaction can be had by recovery of paddy in kind through Court, in stead of the normal mode of execution by recovering its value in money. The customary dues referred to in Article 119 take in a variety of items and the indication derived from the Explanation to the Article is that all such items are deemed to be money charged on immovable property.

Thus the little help that is derived from this Article is in support of the position that the several dues falling under this Article have to be enforced as money claims. Explanation (b) to Article 132 of the Indian Limitation Act is also to the same effect. It states that

the value of any agricultural or other prod(sic) the right to receive which is secured by a char(sic) immovable property, shall be deemed to be money charged upon immovable property."

Even before the addition of such an Explanation to this Article, the same conclusion had been arrived at by the Calcutta High Court in the Full Bench decision - ''Ramchand Sur v.Iswar Chandra -Giri'' AIR 1921 Cal 172 (Q), while construing the Scope and effect of Article 132 as it then stood.

There it was observed as follows:

The parties in the case before us entered into an engagement, which, if not performed by the delivery of paddy, would give rise to a pecuniary liability. No other construction can reason- ably placed on the transaction. The parties could not have intended that, in the event of default in the delivery of paddy, the Court should sell the mortgaged property, and for the benefit of the plaintiff, procure paddy from the market with the sale proceeds, which, according to our Code of Civil Procedure, must be money, the only recognised medium of exchange. From this point of view, it is a reasonable construction of Article 132 to hold that, in a case of this description, the money value of the paddy was charged upon the mortgaged premises.

There is no reason why a different principle should be followed in the matter of enforcement of claims for paddy under a bond in this State. Tt may be that transactions in paddy are very common in this State and that parties to such transactions might have contemplated the discharge of the obligations arising therefrom by repayment in kind. But when the matter is taken to Court, such relief only as is sanctioned by the procedure governing the Court could be granted and that trough the recognised medium of exchange. If the claim is for any specific movable property, the recovery of the same can be had through Court, and in granting such a relief the necessity of adopting the recognised medium of exchange may not arise. This leads on to the second point mentioned above, viz., whether the procedure sanctioned by Rule 10 of Order 20 of the CPC can be resorted to in respect of claims for paddy.

The provision in Rule 10 of Order 20 of the CPC is as follows:

Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.

The identical provision was contained in Section 203 of the Travancore Code which was in force at the time of the decision in - ''14 Trav LJ 419 (FB) (C)''. it was ruled in that case that the section applies not only to suits for specific movable property but also to suits for recovery of paddy in kind. This view is unsupportable on reason or pririnciple, and even the Full Bench which later considered the identical question in - ''1948 Trav LR 110 (FB) (A)'' was not prepared to fully subscribe to the view in - ''14 Trav LJ 419 (FB) (C)'' At page 115 of the later decision it is observed that:

It cannot, therefore, be said that the rule laid down in - ''14 Trav LJ 419 (FB) (C)'' about the scope of Section 203 is absolutely unsupportable.

Later on, at p. 129, it is again stated that the Courts here apply the principle underlying Order 21, Rule 10 of the Code of Civil Procedure, even though that rule may be inapplicable expressly, and hold that in suits for recovery of paddy, an option has to be given to the Defendant to pay the same in paddy.

In the earlier decision in - "14 Trav LJ 22 (F)'' it was ruled that "Section 203 of the CPC applies to suits for specific movable property and has no application to paddy....". This is the view generally accepted in other jurisdictions also on the question of the scope of the old Section 203 corresponding to Rule 10 of Order 20 of the present Code of Civil Procedure. The reason stated in - ''14 Trav LJ 419 (FB) (C)'' for construing the rule as having a wider scope so as to apply to all kinds of movables, is that the word "specific" does not find a place in the rule.

No doubt the word "specific" is not used in the rule. All the same there is sufficient indication in the expressions used in Rule. 10 that it is meant to apply only to suits for specific movable property. The latter, part of the rule requires that the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had. This means that the question of payment of money will arise only if the delivery of the property specified in the decree becomes impossible. If the identity of the property is not described with scrupulous accuracy so as to make the same come within the category of "specific moveable property" the contingency of impossibility of delivery of such property may not ordinarily happen, because any other property of the same or similar type may be available to be given delivery of. Taking the case of paddy itself, it is clear that if the claim is a general one for recovery of paddy, there may be any difficulty - not to speak of impossibility - in giving delivery of some kind of paddy, unless it be that paddy ceases to be available as a commodity in this country. But if the claim is for the identical grains of paddy covered by the transaction between the parties, delivery of the same may be impossible after that paddy is used up or destroyed.

Thus it would mean that if Rule 10 of Order 20 is to govern suits for paddy also even apart from the claim for specific grains of paddy, the latter part of the rule regarding the alternative payment in money may not come into play at all, because under this rule the decree-holder has no option not to take delivery of the property in kind and to fall back upon the alternative claim for recovery of its money value. If the property is available he is bound to accept the same. But if the application of the rule is not limited to specific movable property a difficult situation may be brought about while attempting to enforce the decree. Here again paddy may be taken as an illustration. If the decree is a general one for recovery of paddy, it will be open to the Defendant to offer paddy of some particular variety and quality out of the numerous varieties of different qualities that may be available in the market. That which is offered may or may not be acceptable to the decree-holder.

If the parties agree between themselves, the intervention of the Court for the enforcement of the decree will not become necessary. If the parties disagree, it will be impossible for the Court to fix upon the identity of the paddy both in variety and in quality that is contemplated by the decree, so as to compel the judgment-debtor to produce such paddy and also to compel the decree-holder to accept the same in satisfaction of the claim under the decree. The decree that a Court passes must have a certainty and definiteness about it, and it must be capable of enforcement. That is why it is insisted upon by the law governing the procedure of Courts that decree for delivery of movable property should be passed only in the case of specific movables whose identity is definitely known, so that the same may be traced out and recovered and delivered as per the terms of the decree. Otherwise the delivery attempted will be only of one type of movable property mentioned in trie decree in exchange for Anr. . Satisfaction by means of such an exchange can be effective and certain only where such satisfaction is made hi the currency of the country, which is the only recognised medium of exchange.

For understanding the real scope of Rule 10 of Order 20 of the Code of Civil Procedure, the rule has to be read along with the other provisions in the Code prescribing the mode of execution of decrees in respect of movable properties and also in the light of the relevant provisions of the Specific Relief Act which deal with the substantive law relating to the claims for recovery of properties both movable and immovable. The Specific Relief Act contemplates recovery of movable property in specie, only in cases which can be brought under Sections 10 and 11. These two sections relate to specific movable property. Section 10 states that a person entitled to the possession of specific movable property may recover the same in the manner prescribed by the Code of Civil Procedure.

Section 11 states that any person having possession or control of a particular movable property of which he is the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession: (1) when the thing claimed is held by the Defendant as the agent or trustee of the claimant, (2) when compensation in monev would not afford the claimant adequate relief for the loss of the thing claimed, (3) when it would be extremely difficult to ascertain the actual damage caused by its loss, and (4) when possession of the thing claimed has been wrongfully transferred from the claimant. The Act does not contain any provision under which a general claim for movable property in kind could be sustained. Where the claim is of such a general nature, its satisfaction is to be afforded bv a decree for the money value of such movable property.

When the claim is for specific movable property, Section 10 states that recovery of the same can be allowed in the manner prescribed by the Code of Civil Procedure. The reference is obviously to Rule 10 of Order 20 and to Rule 31 of Order 21 of the Code. There is no other provision in the Code prescribing the procedure for the enforcement of a claim for movable property. Rule 10 of Order 20 prescribes the mode in which the decree in a suit for movable property has to be passed. Rule 31 of Order 21 prescribes the manner in which a decree for recovery of movable property is to be enforced. Rule 31 makes it clear that the decree referred to is a decree for specific movables or for any share in a specific movable. Read in the light of this rule and of Section 10 of the Specify Relief Act, there can be no doubt that Rule 10 of Order 20 of the Code of Qivil Procedure applies only to suits for specific movable property. The rule applies to suits for recovery of movable property, in specie i.e., the very property itself, and not for any substitute for that property. Such an action ''in detineu'' would lie only for a specific article of movable property capable of being recovered in specie and of being seized and delivered to the claimant through the process of Court.

Where there is no possibility of recovering the identical property, the only enforceable remedy that can be granted will be by way of a decree for the value of the article. In - ''Murugesa Mudali v. Jotharam Davay'' 22 Mad 478 (R) it was ruled that the movable property sued for not being in the possession or control of the Defendants, the plaintiff was not entitled to a decree for its recovery in specie, but was only entitled to a decree for its value as compensation. To the same effect is the decision in - ''Venkatasubba Rao v. Asiatic Steam Navigation Co. Calcutta'' AIR 1916 Mad 314 (FB) (S). In - ''Bhonajee v. Mt. Saraswati'' AIR 1924 Nag 176 (T) where the claim was for the enforcement of a claim to deliver a certain quantity of grain as maintenance, it was held that there being no specific grains agreed to be delivered, the Court could not decree the claim for grain under Rule 10 of Order 20 of the Code of Civil Procedure, but could only give a deecree for cash payment of the value of the grain.

In - Narayanan Nambudripad Vs. Beepattumma, also it wasruled by a Full Bench that where a landlord sues for rent payable in kind, the tenant cannot becompelled to deliver to the landlord so many measures of paddy and that the relief that can be given to the landlord is by way of a decree to recover money in lieu of the paddy which should have been delivered by the tenant under the contract of tenancy. From the foregoing discussion it is clear that both the grounds on which the decision in - ''1948 Trav LR 110 (FB) (A)'' has proceeded - viz., that paddy is ''analogous to'' or is "regarded very much in the same light as'' currency" and that a suit for recovery of paddy in- kind would fall under Rule 10 of Order 20 of the CPC - are unsustainable. It is also, clear''that where the claim is not for any specific movable property but is only general one for movable property of any particular class or variety like paddy or other commodity, such property has necessarily to be converted into current money so that the claim may be enforced through Court.

Which is the material date" on which the commodity claimed in the suit should be converbvied into money, is the next question for considerstion. Three different dates have come up for consideration in this connection in judicial decisions and these are: (1) the date on which the commodity becamc due or payable, (2) the date of the suit claiming the same and (3) the date on which the claim is decreed. In English and American, cases the controversy was restricted to two of these dates and the question debated has been ''whether the material date for conversion should be the date on which the commodity became due or whether the date should be the date of the judgment. The date of suit does not appear to have been urged in those jurisdictions as the material5 date for the purpose of conversion. The English decisions have consistently held that conversion has to be made at the prevailing rate as on the date when the commodity was payable.

To accept the date of the suit as the relevant date for this purpose would be to leave to the plaintiff the option of fixing the extent of his claim in terms of current money by taking advantage of the fluctuations in exchange rates or market rates and choosing his own time to put the claim in action. It may well be that even after his cause of action arose he may watch the fluctuations in the rates of conversion and wait for the most opportune time when the rates may be very high and commence his action only then, so that the money value of his claim may be put at the highest possible limit. The amount thus claimed may be out of all proportion which he could have claimed had he commenced the action as soon as the commodity had become payable and the Defendant had defaulted to honour his liability.

The acceptance of the theory that the Defendant should be given an opportunity of discharging his liability ay making payment of the commodity in kind before permitting the plaintiff to enforce his claim in terms of its equivalent in money, is also bound to create an uncertainty in trie extent of the amount that may be recovered The Defendant may choose to offer payment "to kind, only when the conversion rate is at the lowest, so that the liability to be fixed in terms Of money in the event of the plaintiff''s refusal to accept payment in kind, may be put at the lowest figure possible. The Court is not concerned ith the advantage or disadvantage which either party may hope to derive out of such speculations. All the same, the principle that should guide the Court is that there should be a certainty and fixing in the relief that may be granted by it in respect of a particular claim.

When the plaintiff comes to Court complaining Of default on the part of the Defendant in the discharge of his obligations and succeeds in making out the claim the decree that should be passed is one which would put the plaintiff in such a position as if the Defendant had discharged his obligation on the due date. If an enforceable relief in that direction can be granted only in the currency of the forum, it logically follows that the conversion must be at the market rate when the cause of action arose on account of the Defendant''s default to discharge his obligation.

When the claim is thus crystallised the amount to be decreed in favour of the plaintiff will remain fixed and will not be subject to variation on account of the speculative tactics which either party may adopt. Any delay in the satisfaction of the claim should be compensated by the award of iterest on the amount which has thus become tscertained and fixed. These aspects have been particularly emphasised in some of the English decisions which will be presently referred to and Ihere the question as to the date of conversion in respect of claims falling under the .category commodities has been discussed and decided. (10) ''Manners v. Pearson and Son'' (1398) 1 Chn 681 (V) is one of the leading English cases where question of conversion of foreign currency into English currency had come up for consideration. in that case the claim was one which arose under contract entered into in Mexico and which had be settled in Mexican dollars. The action was for account and was brought in England. The court took the view that Mexican Dollars could treated only as a commodity in England, and,t the claim based on Mexican dollars could adjudicated by the English Courts only in terms English currency representing the value of such (sic)ars at the rate prevailing on the due date.

The principles which should guide the Court in(sic) matter of such conversion have been explain- by Vaughan Williams, L.J. as follows:

It seems clear that, in an action in whatever (sic)rm in the English Courts for the recovery a deb(sic) payable in foreign currency, the ount of the English judgment or order must expressed in English currency, and that, un(sic)ss the relative values of the respective cur(sic)ncles are fixed by statute or some authority (sic)onding the English Courts or by the agreement(sic) the litigants, the amount of the English idgment or order must be based on the quan(sic)ty of English sterling which one would have(sic) pay here to obtain in the market the amount(sic) the debt payable in foreign currency deli(sic)red at the appointed place of payment, i.e.,(sic) amount payable according to the rate of excbange.

It seems plain that this mode of computing the value of foreign currency in English sterling, and thus converting the one currency into the other, is based upon damages for the breach of contract to deliver the commodity bargained for at the appointed time and place, and, if this is so, it follows that the date as of which, that value must be ascertained is the date of tiie breach, and not the date of the judgment. If this is the general rule in actions lor the recovery in English Courts of sums payable abroad in foreign currency, I see no reason why a different rule should be applied in a case where the form of action is, as it is in this case, an action for an account.

Suppose the account had been an account of the number of bushels of maize which the Defendants had received in Mexico on account of the plaintiff, the amount payable by the Defendants to the plaintiff would have to be fixed according to the value of the maize at the date when the Defendants ought to have accounted for the maize in question according to the course of business between themselves and their principal, and it seems to me that the Mexican dollar should be accounted for on the same footing.

In the course of that judgment the Lord Justice quoted with approval the following observation, which Lord Eldon had made in - ''Cash v. Kennion'' (1805) 11 Ves 314 (W):

Where a man agrees to pay � 100 in London, upon the 1st of January, he ought to have that sum there upon that day. If he fails in that contract, wherever the creditor sues him, the law of that country ought to give him just as much, as he would have had, if the contract had been performed.

The same principles were laid down by Ballhache, J., in - ''Barry v. Vanden Hurk'' (1920) 2 KB 709 (X) where the claim was for damages for the breach of contract committed by the Defendant who failed to accept delivery of and make payment for 5000 cases of skimmed sweetened milk as per the terms of the contract. The payment had to be made in America in dollars. On account of the Defendant''s failure to honour the contract, the plaintiff had to sell" the goods in open market and the damages claimed by Mm represented the difference between the contract price and the price actually realised by the sale in the open market. Since the action was brought in an English Court, the decree had to be giveia in English currency.

On the question of conversion of American, dollars into English currency for the purpose of passing an enforceable decree in English currency, Bailhache, J. observed as follows:

The plaintiff, whether he be buyer or seller, may issue his writ immediately the breach of contract takes place; the damages are then crystallized, and they do not change'' afterwards....The Courts do not take any account of the necessary delay which must occur before a case is brought to trial....In my opinion the amount due to the plaintiffs in foreign currency in respect of the Defendant''s breach of contract must be converted into English currency according to the rate of exchange ruling at the date of the breach.

''Di Ferdinando v. Simon Smits and Co. Ltd.'' (1920) 3 KB 409 (Y) was also a case of damages. The Defendants in that case had contracted'' to carry plaintiffs goods from England and deliver the same in Italy on 10-2-1919. But they had converted the goods and had thus committed breach of the contract. The value of the goods in Italy on 10-2-1919 as per the Italian currency was the claim in damages. The principles to be followed in awarding damages in English currency by the English Court where the action was brought, were explained by Scrutton, L.J. at p. 414 as follows:

On principle t''he matter appears to stand thus: When a plaintiff claims damages for breach of contract to deliver goods in a foreign country at a fixed date, the measure of damages is, if there is a market, the market value of those goods at the place where and on the day when they should have. been delivered; and it is immaterial to prove that at the date of the judgment awarding the damages the goods were either worth more or worth less than they were at the date of the breach.

If the goods were worth � 50 a ton on the day for delivery, it would be irrelevant to prove that they were worth � 100/- a ton on the day of the judgment. The reason for excluding that evidence is that subsequent fluctuations in the value of the goods which ought to have been delivered are too remote, as a consequence of '' the original breach, to be taken into account by the Court. Therefore, shutting out the change in the value of the goods after the date of breach, if the damages have to be assessed in the currency of a foreign country, the Court has to arrive at a figure expressed in foreign currency.

An English Court however cannot give judgment in foreign currency, there being no power to enforce such a judgment. Therefore the Court must translate into English currency the " figure arrived at as the damages in foreign currency on the date of the breach. Just as the Court has to exclude from the calculation of the damages the subsequent change in the value of the goods after the date of breach, so also it has to exclude the subsequent change in the value of the currency after the date of the breach; and for the same reason - namely, that the changes in the value of the currency are too remote a consequence of the breach to be taken into consideration by the Court.

In - ''Societe Des Hotels Du Touquet-Paris-Plage v. Cumming'' (1921) 3 KB 459 (Z) it was ruled that the principles laid down in the above-mentioned cases would apply with equal force to a claim for recovery of a liquidated debt just as to a claim for damages. In that case the debt was incurred in France and fell due on 31-12-1914. In an action brought in England on account of the Defendant''s default to pay up the debt, it was held that in arriving at the proper equivalent in English currency the rate of exchange prevailing between the two countries on 31-12-1914, when the debt became due, should be adopted.

In - ''S.S. Celia v. S.S. Volturno'' (1921) 2 AC 544 (Zl) the foundation of the claim lay in tort. There was a collision between an English ship and an Italian ship and the damages were settled in terms of Italian lire. The action in the English Court was for recovery of the amount thus settled. In repelling the contention that the liability to pay in terms of Italian lire continued till the date of the judgment and that therefore the conversion into English currency should be at the rate of exchange prevailing on the date of the judgment, it was held that the proper date for ascertaining the rate of exchange for the purpose of converting the amount of the Italian lire, representing the quantum of damages, into English currency, was the date of the wrongful act.

In dealing with that matter Lord Buckmaster stated as follows, at p. 548:

A judgment, whether for breach of contract or for tort, where, as in this case, the damage is not continuing, does not proceed by determining what is the sum, which, without regarding other circumstances, would at the time of the hearing afford compensation for the loss, what was the loss actually proved to have been incurred either at the time of the breach o in consequence of the wrong In cases where as in the present, the damage is fixed and de(sic)nite, and due to conditions determined at particular date, the amount of damage is assessed by reference to the. then existing circumstances and subsequent changes would not affc the result. If these damages be assessed in foreign currency the judgment here, which must be expressed in sterling, must be based on amouht required to convert this currency into sterling at the date when the measure was p perlroy made, and the subsequent, fluctuation exchange, one way or the other, ought not to be taken into account.

On the same question Lord Sumner expr himself as follows (at p. 558):

Fluctuations in foreign exchanges inevitably introduce a speculative element into all tra tions and affairs, and, unless the parties them selves have provided for this by some contract the law must apply the same principles as if they had remained stable. Waiting to convert the currency till the date of judgment only add(sic) the uncertainty of exchange to the uncertainty of the law''s delays. The result may favour one side or the other, and there is no answer to th(sic) except that already discussed, namely, that theclaimant''s right is exclusively a right to lire and would result in a judgment for lire, if only an English Court was, so to speak, competen(sic) to express itself in Italian. This is a mer(sic) assumption. After all the Court is an English Court and in theory decides the right as at th(sic)time when it arises, and does so in plain English.

The decision in - ''Dlutsche Bank Fillal(sic) Nurnberg v. Humphrey'' (1926) 272 US 517 at p. 52(sic) (Z2) is in favour of the view that in an action to recover damages for failure to repay a deh(sic)due in a foreign country in terms of the currency of that country, the conversion of the foreign currency into the currency of the forum must be at the exchange rate on the date of the suit Humphrey, an American citizen, deposited money payable on demand in a German Bank in Germany. The money was not paid on demand which was made in June 1915. The debt was a debt of German marks. The suit to recover the debt was brought in America in July 1921. The case was finally decided by a Bench of 9 Judges of the Supreme Court of America. There was a sharp difference of opinion on the question of the debt for the purpose of conversion of the German marks into American dollars, in awarding the decree to the plaintiff, 5 Judges forming the majority, taking the view that the conversic(sic) should be at the exchange rate on the date of the suit, while the remaining 4 taking the view, the conversion should be at the exchange rat existing at the date when the debt was demanded.

The reasons stated in support of the majority view are the-following:

. . .at the date of the demand the German Bank owed no duty to the plaintiff under our law. It was not subject to our juri(sic)diction and the only liability that it incun(sic) by its failure to pay was that which the German law might impose. It has incurred(sic) additional or other one since. A suit in this country is based upon an obligation existing under the foreign law at the time when the suit is brought, and the obligation is not enlarged by the fact that the creditor happens to be able to catch his debtor here....We may assume that when the Bank failed to pay on demand its liability was fixed at a certain number of marks both by the terms of the contract and by the German law - but we also assume that it was fixed in marks only, not at the extrinsic value that''those marks then had in commodities or in the currency of Anr. country.

On the contrary, we repeat, it was and continued to be a liability in marks alone and was open to satisfaction by the payment of that number of marks, at any time, with whatever interest might have accrued, however much the mark might have fallen in value as compared with other things....An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it.... Obviously in fact a dollar or a mark may have different values at different times but to the law that establishes it it is always the same. If the debt had been due here and the value of dollars had dropped before suit was brought the plaintiff could recover no more dollars on that account. A foreign debtor should be no worse off....Here we are lending our Courts to enforce an obligation (as we should put it, to pay damages) arising from German law alone and ought to enforce no greater obligation than exists by that law at the moment the suit is brought"..

Apart from the question of the fallacy of this line of reasoning as pointed out in the judgment of the minority, it is clear that the strongest ground urged in support of the majority view is that German marks continued to be legal tender at all relevant periods. If, on the other hand, the claim was one for a commodity like paddy in 1 the present- instance, not having the force of legal tender, the decision of the majority would also appear to have been in favour of the view that the conversion into current money should be at the rate prevailing on the date when the commodity was payable. This is clear from the fact that the decision in - ''Hicks v. Guinness'' (1925) 269 US 71 (Z3), where such a view was taken, is cited with approval in the majority judgment. The reasoning adopted in the judgment of Mr. Justice Sutherland representing the minority view, is in complete accord with the principles enunciated by the English decisions pertaining to the same Subject.

The following extracts from that judgment are Tery instructive:

It is well-settled, I think, that, where the cause of action for a tort or breach of contract to deliver goods accrues in a foreign country and is sued on here, the time for fixing the value of foreign money in dollars is the date when fthe wrong was committed or the breach occurred. This Court has recently applied the same rule to the case of a simple debt payable in this country - ''(1925) 269 US 71 (Z3)'', and to the settlement of partnership accounts, where the partnership funds were partly here and partly abroad I- ''Sutherland v. Mayer'' (1925) 271 US 272 (Z4) ). The majority opinion rests upon the distinction that the debt upon which recovery here is sought was ''payable in Germany''. The distinction, I think is fallacious, and proceeds from a very narrow view of the principles applied in - ''Hicks v. Guinness'', (Z3) and - Suther- land v. Mayer (Z4).

It is said that when the bank failed to pay on demand, its liability was fixed by German law at a certain number of German marks only; that it continued to be a liability in marks only and was open to satisfaction by the payment of that number of marks at any time, however much the mark might have fallen in value as compared with other things; qiting - ''Societe Des Hotels Le Touquet Paris-Plage v. Cummings'' (1922) 1 KB 451 (Z5) - C.A. And1 that, of course, is true if the payment be made in ''Germany'', where marks remain legal tender at all times irrespective of their fluctuating value when measured by their purchasing power or by the money of other countries. And this is all that is held in - ''Societe des Hotels Le Touquet Paris-Plage v. Cummings (Z5)'', Supra. See pp. 458, 461, 464.

It, likewise, may be assumed that if suit had been brought in Germany, a judgment at any time for the number of marks called for by the obligation would have satisfied the requirement of German law, since there marks were not only the things to be delivered but the lawful money with which to satisfy a breach of an obligation to deliver them. But if suit be brought in a court of this country, where marks are not money but things only, the judgment must be in dollars and cannot be in marks any more than it could be in wheat if the broken contract related to that commodity.

The view that the judgment date should govern puts undue emphasis upon the character of the thing to be delivered and ignores completely the all-important element of the time when the delivery should have been made. In respect of that element, I see no good reason for making a distinction between marks and wheat. In either case, if suit be brought in Germany, the injured party is entitled to recover the amount of his loss in marks and in marks only. In the one case, the subject-matter (wheat) must be translated into money; but not so in the other, for the subject-matter is money already. In the case of wheat, therefore, the date of the breach must be considered because, presumably in Germany as here, it is the value of the wheat in marks at that time which fixes the amount of recovery. In the case of marks, however, the element of time is of no consequence since, in Germany, the value of a mark can be measured only by1 itself.

But in an action brought here to recover upon a failure to deliver marks in Germany, the question of time becomes material; for here a mark is not money, but a commodity; and if plaintiff is to be compensated in dollars for his ''loss'', we must inquire, when did the loss incur, just as we must make that inquiry in order to fix in dollars the value of wheat in a suit to recover for the non-delivery of that commodity. To me it seems clear that, in the one case as in " the other, the basis of recovery must be the value in dollars of the thing lost at the time of the loss. In jfchls respect, a simple debt payable in marks and an, obligation to deliver goods in Germany stand upon the same footing. In either case, the injured party is entitled to have in the money of this country the value of what he would have obtained if the contract had been performed at the stipulated time....

To take the date of judgment for determining the value is to adopt for the measurement of a loss a test resting upon the fluctuating, chances of a court calendar instead of upon an event already fixed,- that is, to put aside certainty for uncertainty. The date of the breach, whether of a contract to deliver goods or to pay money, marks the essential event which gives rise to the cause of action and bears a necessary relation to the wrong sought to be redressed; while the date of the rendition of judgment bears no relation whatever to the wrong complained of and has nothing to do with the cause of action....

I think it is extremely desirable that the rule Established should be one capable of uniform application. To take the date of the judgment is to establish a rule which does not meet this requirement. The amount of the recovery will depend upon whether suit is promptly brought or promptly prosecuted; whether the Defendant interposes dilatory measures; whether the call of the docket is largely in arrears or is up to date; and, perhaps, upon whether there is a successful appeal and a new trial with the consequent annulment of the old judgment and the rendition of a new one. Under these circumstances it may well happen that, in one case, where judgment is not delayed, the plaintiff will recover a substantial sum, while in a precisely similar case, where judgment is delayed until the foreign currency has greatly depreciated, the sum recovered by comparison may be altogether insignificant.

The decision of the American Supreme Court in the above case had no persuasive effect on the English Courts which continued to maintain the same view as before on the question of the date of conversion, when the claim is based on foreign currency or other commodities. In - ''Madeleine Vionnet Et Cie v. Wills'' (1940) 1 KB 72 (Z6) specific reference was made to the decision of the Supreme Court of the United States of America in - ''(1926) 272 US 517 (Z2)'', and the view recorded in that case by a majority was refused to be accepted and followed. The claim put in action in - ''(1940) 1 KB 72 (Z6)'' was for recovery of price of goods sold in Prance and payable in French currency. After an exhaustive review of the earlier English decisions, the prevailing view that the correct date on which the debt ought to be converted into English money for the ascertainment of the amount which the plaintiff ought to recover is the date when the debt became due in France, was once again affirmed.

This case is also an authority for the position that the same rule applies irrespective of the question whether the claim is for recovery of a debt or for an amount by way of damages arising out of tort or a breach of contract.

Clauson, L.J. made this position clear in the following passages:

It is now settled law in this country, since the decision of the House of Lords in - ''(1921) 2 AC 544 (Zl)'', following and approving the decision of this Court in - ''(1920) 3 KB 409 (Y)'',(1) that in the case of a claim for damages for breach of contract, or in the case of a claim in tort for fixed and definite damage due to con-ditions determined at a particular date, the amount of damage has to be assessed by reference to the circumstances existing'' at the material date, namely, in the case of contract, the date of breach, and in the case mentioned above of tort, at the particular date for determination of the damage, and consequently (2) that where j.n any such case the damages are primarily assessed in a foreign currency, the relief given by a Court in this Country, which must express, its judgments in sterling, must be calculated upon tne rate of exchange prevailing at the material date, namely, in the case of contract the date of breach.

If this be the position the only question open in this Court would seem to be whether any distinction can in principle be drawn between the. case of a claim in respect of breach of contract which results in relief by way of damages, and a like claim which results in relief by way of a judgment for a fixed sum. We can find no logical ground for such a distinction either in reason or in any principle which can be deduced, from the decided cases; indeed counsel supporting the judgment below was not able to formulate any such principle, still less to point to any? decided cases ''from which any such principle- could be deduced.

The decisions in - ''re. Credit General Liegeois'' Claim (1922) 2 Ch. 589 (Z7)''; and in - ''Peyrae v. Wilkinson'' (1924) 2 KB 166 (Z8) as also the principles enunciated by Vaughan Williams, L.J. in -''(1898) 1 Ch. 581 (V)'' were also referred to in support of the view that there is no distinction in principle between the case of a claim in respect of a breach of contract which results in relief by way of damages and a like claim which results, in relief by way of payment of a fixed sum. The principle that the date to be adopted for the purpose of conversion of a debt or other claims based on a commodity or on a foreign currency is the date on which the liability or the claim accrues has been reiterated and affirmed quite recently also in - ''Cummings v. London Bullion Co. Ltd. (1952) 1 AllER 383 (Z9).

The only complication in that case was that because of a provision contained in a special statute, the Exchange Control Act, 1947, the normal date for the discharge of the Defendant''s obligation happened to be put off to a later date Clause 1 of Section 6 of that Act stated that except with the permission of the Treasury, no person resident in the United Kingdom shall subject to the provisions of the sections make any payment, outside the United Kingdom to or for the credits of any person resident outside the scheduled territories. Clause 1 of Section 33 stated that

it shall be an implied condition in any contract that, where by virtue of this Act, the permission or consent of the Treasury is at the time of the contract required for the performance of any term thereof, that term shall not be performed except in so far as the permission or consent is given or is not required.

The view taken was that these provisions are to be regarded as incorporated in the agreement in question and constitutiong an implied term there of. Accordingly the date when payment was due was held to be the date when the required permission of the Treasury had been obtained.

The principles enunciated by Judged of great eminence in the above-mentioned cases- afford the best guidance in the matter of answering the question that is raised before this Full Bench. These principles were accepted in full and. have been followed in - ''37 Cochin 60 (FB) (B)'' They have been accepted to a limited extent in- ''(1948) Trav LR 110 (FB) (A)'' also, where the view taken is that the application of these principles has to be confined to cases where the claim is one for damages, such as a claim for damages for breach of contract, or a claim for mesne profits. A different rule is. sought to be made ap able to cases where the claim is for recovery of paddy due under a bond and to cases where the claim is for recovery of paddy by way of rent or Quonavaram.

The only reason stated to substantiate such a distinction is that in the former set of cases

the quantum of damages has to be determined by the Court and it has necessarily to do so in terms of the currency of the forum

while in the latter class of cases it is open to the Courts to give an option to the obligee to pay what is due by him in tne shape of paddy. As already pointed out, no question of option can arise where the Court is called upon to pass a decree capable of enforcement. Implementation of the option of either party will depend upon the willingness of the opposite party to abide by the exercisers of such option. In all other cases the only course open is to enforce the decree that is passed by the Court and for that purpose it has necessarily to be expressed in the currency of the forum.

It follows, therefore, that the distinction sought to be maintained between claims in the nature of damages and claims falling under other categories is unsupportabie on any legal principle. The foundation of all such claims will be traceable to some form of contract or to tort. The claim based on tort will undoubtedly be in the nature of damages. Claims based on contracts will arise when there has been a breach of such contract. The rights and liabilities of the parties to the contract arising out of such a breach are those indicated in Section 73, Indian Contract Act. That section states that

when a contract is broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

This provision is subject to the qualification that "such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach." The second part of the section states that

when an obligation resembling those created by contract has been incurred and has not been ''discharged, any person injured by the failure ii to discharge is entitled to receive the same com- " pensation from the party in default as if such " person had contracted to discharge it and had broken his contract.

This latter provision contemplates cases where ie compensation that can be claimed from the defaulting party to the contract, is already ascertained and fixed. Contractual obligations by way of paddy recoverable as rent or michavaram or under a bond, fall under this category. In the first category of cases contemplated by the section the damages to be awarded for the breach of the ltract may have to be ascertained before the ''ount of compensation fixed by the Court.

In both the classes of cases the governing prinaple is that in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been, if the contract had been performed. The mere fact that the (sic)rtent of compensation that should be awarded (sic)one set of cases is already known, while the one has to be ascertained in the other set of (sic)cannot be a valid ground to make a distinc(sic) between the two in the matter of conversion the commodity into money for the purpose of passing an enforceable decree for compensation. The liability in all such cases has its foundation in the contract governing the parties.

The following rules enunciated in Hajsbury''s Laws of England, Hailsham 2nd Edition Volume X, page 150, may be quoted in this connection

When a judgment is given for the recovery of a sum of money payable in foreign currency, the amount of the judgment must be expressed in English currency, as tne Court has only jurisdiction to award damages in English money. In actions lor damages lor breach of contract the rate of exchange prevailing at tae date of the breach, and not at the date of the judgment, has to be taken in calculating the damages payable in English currency.

The same rule prevails in actions of tort, where the damage is fixed and is aue to conditions determined at a particular date, and the date for conversion into English money in such cases is the date when the tort was committed.

The English cases already cited are definitely in favour of the principles adopted in these rules. It is also clear from those cases that tne same rule of conversion has to govern all cases, no matter whether the claim is in the nature of damages for tort or breach of contract or whether it is for recovery of a debt or for the enforcement of other contractual obligations. The decisions in - ''1921 3 KB 459 (Z)'' and in - ''1940 1 KB 72 (Z6)'' are particularly relevant in this connection. The claims that arose for consideration in - ''37 Cochin 60 (FB) (B)'', also fell under two distinct categories, viz., one by way of damages in the shape of mesne profits, and the other by way of rent or pattom due from the Defendants who were tenants holding the suit properties under the plaintiff. It was held that the same rule of conversion applies to the claim for recovery of paddy falling under both the categories, viz., that the paddy should be converted into money at the rate prevailing on the respective dates when the paddy became payable.

The conclusion reached as a result of the foregoing discussions is that the rules laid down in - ''1948 Trav LR 110 (FB) (A)'' on the question of commutation of paddy when the claim is put" in action, are unsustainable in law. That''decision is accordingly overruled. The rule of conversion as laid down in - ''37 Cochin 60 (PB) (B)'' is correct and hence that decision is affirmed. In suits for the enforcement of claims for paddy or other commodities, the decree to be passed must be in terms of the currency of the country and for that purpose the paddy or other commodities have to be commuted into current money at the market rate'' prevailing on the respective dates when the commodity became payable. This rule is to govern all such cases irrespective of any consideration whether the claim is for damages arising out of tort or for damages to be ascertained for breach of contract or whether the claim is for recovery of paddy due under transactions in paddy or other commodities or whether the claim is for recovery of paddy due by way of rent, michavaram, pattom, etc., payable by a tenant to his landlord.

In the matter of enforcement of decrees directing payment of paddy or other commodity also the enforcement of such decrees should be ir terms of current money and for that purpose the paddy or other commodity will be commuted into money at the market rate prevailing on the respective dates when the paddy or other commodity became payable. On the question of the date when the commodity can be said to have become payable, it is not possible to lay down a general rule applicable to ail cases. Such dates have to be determined with reference to the terms of tne contract between the parties to sucn transactions. On a due consideration of all such tacts and circumstances peculiar to eacn case, tne Court has, to come to a conclusion as to the exact aate when the commodity became payable and a cause of action arose in favour of tne claimant.

Each of the appeals may now be considered in the light of the answer given above to the main question which is common to all the appeals.

''A.S. No. 125 of 1124 (T); The 2nd Defendant is the Appellant. Defendants 1, 3 and 4 are his brOrs. . The father of these persons was a subscriber in a paddy chitty conducted by the plaintiff and the 5th Defendant jointly. The chitty was commenced in 1102. The 2nd Defendant''s father prized his ticket and received the prize amount and executed the chitty hypothecation bond Ex. A undertaking to pay the feature subscriptions at the rate of 500 paras of paddy for each, of the remaining instalments. He continued to pay the subscriptions regularly up to the tfth instalment, and thereafter became a defaulter. According to the plaintiff 137 paras and 91 edan- gazhies of paddy alone was paid towards the 7th instalment. After the default three other payments are also admitted to have been made and these are Rs. 378 Chs. 7 representing the value of 900 paras of paddy in Edavam 1115, 297 paras of paddy in Medom 1116 and 293 paras of paddy in Medom 1117. The plaintiff''s suit is for recovery of the paddy due for the defaulted instalments, with interest at the stipulated rate from the dates of default, after crediting the admitted payments on the respective dates.

The value of the total amount of paddy calculated on the basis of Ex. A has been claimed at the market rate prevailing on the date of the suit. The 2nd Defendant''s main contention in resisting the suit was that paddy has to be valued at the market rates on the dates when each of the instalments fell due. He also contended that from the dates on which Act 3 of 1112, Act 2 of 1116 and Act 3 of 1116 came into force, interest could be claimed only at the rates limited by those Acts. These contentions were repelled by the lower Court and the plaintiff was given a decree as claimed in the plaint. In the appeal preferred by the 2nd Defendant he has reiterated the contentions which he had raised in the trial ''Court. This being a suit for enforcing a claim for paddy due under a paddy transaction, the principles already enunciated on the question of conversion of paddy into money for the purpose of decreeing the claim have to govern the claim in this case.

About the dates on which the paddy became payable, for each instalment, there is no dispute between the parties. But there is no evidence on record to show the price of paddy that was prevailing on those dates. It is only after ascertaining such data that the amount recoverable by the plaintiff could be fixed and a decree passed in his favour. For that purpose the case has necessarily to go back to the lower Court. In fixing the interest recoverable by the plaintiff, the lower Court will also give effect to the limitations imposed by Act 3 of 1112 and Acts 2 and 3 of 1116.

The result is that the judgment of the lower Court is reversed and the case is remanded to the lower Court for fresh disposal according to law and in the light of the foregoing observations. The Court fee paid on the appeal memorandum will be refunded to the Appellant. Other costs will abide the final result of this appeal.

''A.S. No. 500 of 1950'', The 4th Defendant in O.S. No. 160 of 1105 on the file oi the Kotta- yam District Court is tne Appellant. The appeal is directed against an ordSr passed in execution of the decree in that case whicn allows the decree- hoiaer-piaintin to reaeem tne suit property and recover the same on payment oi tne amounts secured by the mortgage deed and the pui''avaippa deed, which he nad spugnt to avoid. The vaiue of improvements fixed ay the decree was also directed to be paid along witn the otner amounts. Tne decree was passed on 12-1-1118. Part of the consideration for the mortgage consists of 729 paras of paddy. On 17-2-1950 the decree-holder xiled an execution petition seeking recovery of possession of the property after extinguishing the rights under tne mortgage and puravaippa aeeds. Along with this execution petition he deposited in Court the amount payable as redemption price.

In calculating the amount for that purpose he valued the paddy portion of the consideration at the price prevailing on the date of the suit. This valuation was objected to by the 4th Defendant who contended that paddy should be valued at the rate prevailing on 17-2-1950, the date when the decree for redemption was sought to be enforced. This contention was overruled by the Courts below and hence this appeal.

The lower Court''s view on the question of valuation of paddy is sought to be rested on the ruling in - ''Lukka Chacko v. Neelakantan Moothathu'', 1949 Ker LT 187 (Z10), where it was held on the strength of the Full Bench decision in - ''1948 Trav LR 110 (FB) (A) that even inj redemption suits where paddy is payable as parts or whole of the redemption price, such paddy has to be valued at the market rate prevailing on the date of the suit. We have already found that the principles enunciated in - ''1948 Trav LR 110 (FB) (A)'' are unacceptable.

We have also to point out that a suit for redemption of a mortgage where the mortgage consideration consists of paddy, cannot be deemed to be a suit for recovery of such paddy. In spite of a suit or a decree for redemption, the mortgage continues to subsist until redemption is sought to be enforced by tender of the redemption price, It ifl only at the moment of such tender that the mortgage is sought to be extinguished. It is only then that the paddy portion of the redemption price becomes payable. It follows therefore that paddy covered by the mortgage in this case has to be valued at the price prevaling at the time when the redemption price is tendered by deposit at the- same in Court and redemption is sought for by the extinguishment of the mortgage debt. Tile decision in -. ''1949 Ker LT 187 (Z10) is erroneous and it is accordingly overruled.

The result is that this appeal is allowed with costs.''

''A.S. No. 864 of 1950''. The 2nd plaintiff decree-holder is the Appellant. The appeal is directed against an order passed in execution of the decree in O.S. No. 80 of 1103 on the file of the Alleppey District Court. The decree directs redemption of the plaint mortgage and recovery of possession of the property on deposit of 4205 paras of paddy as per the Kallurkadan measure. In the execution petition filed on 7-5-1125 the 4th Defendant raised an objection that redemption cannot be allowed because the decree-holder had not deposited paddy in kind as per the direction in the decree. This objection was upheld by the lower Court and an order was passed directing the decree-holder to file an amended execution petition strictly complying with the terms of the decree. The appeal is against that order.

The position taken up by the decree-bolder is that since the decree has mentioned an amount representing the value of the paddy directed to be paid to the mortgage, he is entitled to put an end to the mortgage and to recover possession of the property on deposit of the sum of money thus mentioned in the decree. It is obvious that the decree-holder is not entitled to take advantage of one portion alone of the decree. If the decree as it stands is to be enforced all the terms of it have to be given effect to. The effective portion of the decree is its opening portion which states that after depositing in Court 4205 paras of paddy as per the Kallurkadan measure (3364 paras of paddy as per the standard measure), the plaintiff may recover possession of the property from the Defendant. Then comes the alternative relief which is to the effect that in case the Defendants are unwilling to accept the paddy in kind, the plaintiffs may deposit in Court the value of the paddy at the nirak rate prevailing on the date of suit. The plaintiffs have not offered to pay the paddy as per the decree in the case.'' Naturally, therefore, the contingency of the Defendants'' refusing to accept such paddy has not also arisen.

Since paddy is only a commodity, the Court cannot compel the plaintiffs to pay the same in kind or to compel the Defendants to accept the same in kind. In this case there is no decree in favour of the Defendants to recover the paddy from the plaintiffs. The decree as it stands is incapable of enforcement in the very terms of it. In such a situation the ordinary rule that the execution Court is bound to enforce the decree as it stands, cannot apply. On the other hand, the execution Court is entitled to construe the decree according to its real purport and then proceed to enforce the substantial relief granted under it. The effective portion of the decree is that which allows redemption of the mortgage on payment of the price of redemption. Since the direction to deposit the redemption price in paddy cannot be enforced, the next alternative of depositing the amount mentioned as the price of paddy as on the date of the suit, on account of the Defendants'' refusal to accept the paddy in kind, cannot also arise. The decree stands as one declaring the plaintiffs'' right to redeem the mortgage. Even after the date of the decree the relationship of the parties as mortgagor and mortgagee continues until the mortgage is put an end to by the mortgagor exercising his right of redemption by tendering the price of redemption to the mortgagee. It is only then that the liability of the mortgagor to pay the paddy covered by the mortgage deed arises. Since the payment is to be made through Court in execution of the decree for redemption, the payment has to be made in current money representing the price of the paddy. It follows, therefore, that the convertion of paddy into money has to be done according to the market rate prevailing on the date when the redemption price is deposited in Court long with the execution petition for enforcement of the decree for redemption.

Subject to the directions made above, this appeal is dismissed with costs.

''A.S. No. 655 of 1951''. This is an execution appeal preferred by the 3rd Defendant in the case, as per the final decree passed in the case on 22-7-(sic)22 the revenue sale impeached in the suit was(sic)aside and the plaintiff was allowed to recover (sic)ssession of the property from the 3rd Defendant (sic)ether with mesne profits at the rate of 373 1/3 as of paddy in alternate years. Such mesne (sic)fits were allowed for a period commencing from (sic)4-1115. the date on which the 3rd Defendant came into possession of the, property. Future mesne profits from the date of tne decree were aiso allowed subject to the usual limitation that the same will be for a period of three yeans or until the date of recovery of the property, whichever happens to be the shorter period. It is agreed on both sides that the decree-holder obtained delivery oi possession of the property from the 3rd Defendant on 20-1-1122.

In the execution petition filed on behalf of the decree-holder on 16-11-1122 mesne profits had been claimed for a period of 8 years at the rate of 373 1/3 paras of paddy for alternative years. Interest at 10 per cent, had also been claimed on such mesne profits. The 3rd Defendant contended that he was not liable for the mesne profits for the full period as claimed by the decree- holder Objections were also raised to the interest claimed on the mesne profits and also to the rate at which the paddy was valued in the execution petition. The lower Court in its order found that mesne profits could be claimed only for a period of 6 years, at the aforesaid rate for alternate years, and that interest could be allowed only at the rate of 6 per cent. In other respects the 3rd Defendant''s objections were overruled. The 3rd Defendant has therefore come up in appeal. On behalf of the Respondent an objection memorandum in respect of the reduction made by the lower Court in the quantum of mesne profits, has been filed.

The point raised in the objection memorandum may be disposed of at the outset. It is common ground that the property is single-crop paddy land and that the crops are taken in the rnontn of Meenom of. Medom. The 3rd Defendant came into possession of the property on 18-4-1115 and it is also agreed that crops had been raised in that year. Thus he is answerable for the mesne profits of that year. Since the decree allows mesne profits for alternate years, the 3rd Defendant is liable for the mesne profits of the years 1117, 1119 and 1121 also. The property was recovered from him only after he.had taken the crops of the year 1121 and before he could raise the crop for the succeeding period. Thus the decree- holder is entitled to recover mesne profits at the rate of 373 1/3 paras of paddy for the years 1115, 1117, 1119 and 1121. On this point the Tower Court''s order is modified in this manner.

The two points urged on behalf of the Appellant relate to the rate at which paddy has to be commuted into money and the interest claimed on the mesne profits. Regarding the first point, it has already been found that conversion of paddy decreed as mesne profits should be in accordance with the principles enunciated in - ''37 Cochin 60 (FB) (B)'', and not in accordance with the decision in - ''1948 Trav LR 110 (FB) (A)''. It follows, therefore, that mesne profits due for the years 1115, 1117, 1119 and 1121 have to be commuted into money at the market rates prevailing on the respective dates when the mesne profits became payable during those years.

Lastly there is the question whether the claim for interest on mesne profits is sustainable. The matter arises in execution of the decree which simply awarded a specified amount by way of mesne profits and is silent on the question whether that amount would- carry future interest or not. The argument advanced on behalf of the Appellant is that the executing Court is not competent to allow the decree-holder to realise interest also because to do so would be adding to, and varying the terms of, the decree. This question was considered in all its aspects by a Full Bench of five Judges of the Madras High Court in - Vellathusseri Chakkala Kumpil Pankunni Menon Vs. Vellathusseri Chakkala Kumpil Raman Menon, and it was ruled in that'' case that when the final decree which fixes the quantum of mesne profits is silent as to interest, it is not open to the executing Court to fix a rate of interest and to execute tne decree allowing such interest also. The earlier decision of the same Court in - Sri Raja Rao Sri Swetachelapathi Ramakrishna Rangarao Bahadur Garu, Raja of Bobilli Vs. Ayyagari Sodemma, where a contrary. view was taken, was overruled by the Full Bench and in doing so the decision of the Privy Council in - ''Grish Chunder Lahiri v. Shoshi shikhareswar Roy'' 27 Cal 951 (Z13) was also explained.

The case in - ''Grish Chunder Lahiri v. Shoshi Shikhareswar Roy (2513)'', was decided on the. basis of the provision of the CPC of. the year 1882 (Act 14 of 1882) which was then in: force. Section 212 of that Code stated that when the amount of mesne profits is disputed, the Court may either order by the decree itself or may pass a decree for the property and order an inquiry into the amount of mesne profits and dispose of the same by further orders. It was also provided in Section 244 that questions regarding the nount of any mesne profits as to which the decree has directed inquiry shall be determined by, order of the Court executing the decree and not by a separate suit. The Explanation added to Section 211 of that Code was to the effect that mesne profits means those profits which the person in wrongful possession of that property received, together with/interest on that profits. The com-'' bined effect of this Explanation and the provisions contained in Section 244 was that the quantum of mesne profits as also the question of interest payable on the same could be determined by proceedings in execution.

The appeal to the Privy Council in the aforesaid case was against an order fixing the amount of mesne profits in proceedings taken for that purpose and the decision of the Privy Council that the Court was competent to award interest on the amount of the profits fixed by it, has to be understood in the light of such circumstances. The position under the present CPC is entirely different. As per the provisions of the present Code, the quantum of mesne profits has to be fixed by the final decree passed by the trial Court itself. In suits for possession of property the Courts could pass a preliminary decree for possession and defer the question of ascertainment and fixation of the amount of mesne profits to the subsequent stage of the final decree to be passed under Rule 12 of Order 20. In passing such a final decree it is open to the Court to fix the amount of mesne profits and then to award interest on the same at a special rate or not to allow any interest at all. In appropriate cases the Court may fix the amount of mesne profits at'' the first stage itself, while decreeing the claim for recovery of possession of the property.

In either case the party aggrieved by the provision in the decree allowing or not allowing interest on the amount of mesne profits fixed has to ventilate his greivance in an appeal against that decree. Where the decree has become final, the executing Court can only execute that decree as it stands and it will be beyond jurisdiction of that Court to modify the decree by adding a provision for interest on the amount decreed by way of mesne profits. The definition of ''mesne profits'' as contained in Ciause 12 of Section 2 of the CPC will not warrant the assumption of such jurisdiction by the executing Court. The definition states that "mesne profits" of property means those profits which the person in wrongful possession .of such property actually received or might1 with ordinary diligence have received therefrom, together With interest on such profits.

Consistent with this definition it is for the trial Court while passing the final decree fixing the quantum of mesne profits, to decide on the question of interest that may be allowed on the amount of profits. Where such decree is clear and unambiguous, it will be incompetent for the executing Court to modify it by making a provision for awarding future interest also. If, on the other hand, the decree is capable of sustaining a construction that the question of interest is left to the discretion of the executing Court, it may be open to that Court to exercise such discretion in favour of the decree-holder and to allow him. interest also by way of damages at the rate of 6 per cent. There is no scope for any such construction being put upon the decree in the present case which is clear on the face of it. It has simply awarded a fixed amount by way of mesne profits and as such it has to be taken that interest on such amount has been disallowed. In such b. situation the executing Court was clearly incompetent to direct recovery of interest also on the amount fixed by, the decree.

The decision in - ''Madathi v. Ganapathia Pillai'' 1946 KER LR 400 (Z14) where it was ruled that even where the decree is silent regarding any interest on mesne profits awarded under If the executing Court is competent to allow recovery of interest at 6 per cent, cannot be accepted as correct for the reasons already stated. That decision is accordingly overruled. The principles which should guide the Court executing a decree providing for mesne profits, are those enunciated in - Vellathusseri Chakkala Kumpil Pankunni Menon Vs. Vellathusseri Chakkala Kumpil Raman Menon, The view taken in - ''Kanthaswami Chettiar v. Albudhaswami Manikaran'' 38 KER 493 (Z15) is also to the same effect.

In the result the appeal and the objection memorandum are allowed in the maimer and to the extent indicated above. Parties will get and pay costs in proportion to their success and failure in this appeal.

''S.A. 339 of 1124 (T)''. This is a second appeal by the plaintiff in the suit whose claim based on the hypothecation bond Ext. B has been decreed by both the lower Courts The bond provides for payment in instalments of paddy due under it. The last instalment which was payable on 5-7-1116 was alone defaulted. The paddy due for that instalment together with, interest as stipulated in Ext. B was the claim put in action. The, total amount of paddy thus due was valued at the market rate prevailing on the date of the suit. The contesting Defendants had raised a plea of, discharge which has been concurrently founflr against by the lower Courts. The trial Court; decreed the claim as put forward in the plaint'' but the lower appellate Court modified that decree by directing that the paddy should be valued aty the market rate that was prevailing in the year 1116 when the paddy had become payable. The appeal is directed against such a modification; made in the decree. On behalf of the Respondents an objection memorandum has been filed challenging the finding that the plea of discharge is not true.

The objection memorandum has only to be dismissed for the simple reason that in this second appeal the concurrent finding on a simple question of fact cannot be allowed to be canvassed. The point raised in the appeal has also to fail in view of the decision already recorded on the general question that when the suit is for paddy it has to be converted into current money at the rate prevailing on the date when such paddy becamepayable. The direction made by the lower Appellate Court is in conformity with this view.

The result is that the appeal as also the objection memorandum are both dismissed with costs.

''S.A. No. 612 of 1124'' (Tr.). This appeal is by the 6tli Defendant in the suit who has been resisting the plaintiff''s suit for redemption. Both �the lower Courts have concurrently found that �on payment of the redemption price of 500 paras of paddy the plaintiff is entitled to redeem the mortgage and to recover possession of the property with mesne profits at the rate claimed in the plaint. But on the question oi commutation of paddy into money for the purpose of deposit of the redemption price into'' Court the lower Courts have differed. in their views. The suit was first filed in ''the Alleppey District Munsiff''s Court on 10-4-1109. But subsequently it was transferred to the Thiruvella District Munsiff''s ''Court where it was registered and re-numbered on 25-5-1118. The trial Court held that the paddy should be valued at the market rate prevailing on 25-5-1118;, but the lower appellate Court held that the valuation of paddy should be made at the rate prevailing on 10-4-1109 the date when the suit was first filed. Both these views are challenged in this second appeal as erroneous.

It is obvious that this is a suit for redemption and not a suit for recovery of any paddy. In spite of the decree for redemption the relationship of the parties as mortgagor and mortgagee continues to subsist until the mortgagor exercises his right to put an end to the mortgage by tendering the redemption price to the mortgagee. It is only when he seeks to enforce his right of redemption in that manner that his liability to pay 500 paras of paddy received as loan from the mortgagee arises. Since the payment of the paddy cannot be enforced through Court he has to pay its value in current money and seek to enforce his right of redemption.

For that purpore the paddy has to, be valued At the market rate prevailing on the date when he chooses to enforce his right of redemption and to extinguish the mortgage by deposit of that amount as redemption price to'' be paid to the mortgagee. The mortgagee Defendant''s liability .for the mesne profits may also arise only from uch date, when alone can it be said that there has been a proper tender of the redemption price. The paddy due as michavaram or as mesne profits will also be converted into money at the market Tate prevailing on the respective dates when such Jpaddy became payable.

The appeal is therefore allowed with costs Jn the manner indicated above.