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Judgment
Subramonia Iyer, J.—These appeals arise in execution and are preferred by Defendants 2, 4, 6, 22, 25 and the 7th Defendant respectively. Three points were raised in appeal. The 1st point related to limitation. The 2nd point related to the question as to whether mesne profits could be claimed for arrears from the date of the decree of the appellate Court and the 3rd point related to the quantum of mesne profits.
The facts have to be succinctly stated to understand the controversy. The suit was for setting aside certain alienations of family properties and for recovery of possession there, of with mesne profits. There were several alienations and the alienees were all impleaded as Defendants. Mesne profits were claimed as a lump sum in respect of all the properties and the claim was made against all the Defendants-alienees for the entire amount, jointly and severally. The trial Court passed a decree on 29-6-1113 allowing the entire claim made by the Plaintiffs. The decree stated that mesne profits at the rate of 50 kottas of paddy and 833 fanams per year should be paid to the Plaintiffs from date of suit and for a period of 3 years from the date of decree i.e. 29-6-1113. Against this decree, three appeals were filed in the Travancore High Court by Defendants 14, 15 and 17 who were three of the alienees. To those appeals the other alienees were not parties. These three appeals were allowed and the Appellants thereof were exonerated from liability under the decree passed by the Court below. The appellate decree was passed on 25-6-1119.
The execution petition on which the order appealed against was passed was filed on 11-11-1121. The first point relating to limitation raises the question as to whether the alienees against whom the execution is sought not having been parties to the appeal the decree so far as they are concerned is the one that was passed on 29-6-1113 and that therefore limitation has to be calculated from that date, not withstanding the fact that there was an appeal filed in the High Court by some other persons and the High Court passed the decree in appeal only on 25-6-1119 calculated from the date of the decree passed by the appellate Court, the execution petition would be in time.
It is very satisfactory to find that in view of this question having been set at rest by the decision of the Privy Council in - Nagendranath v. Sureshchandra 60 Cal 1 (P.C.), to the effect that the time for limitation for execution of a decree has to be calculated from the date of the decree in appeal whenever there has been an appeal against the decree passed even though all parties to the original suit were not parties to the appeal this question was not pressed by the learned Counsel for the Appellant.
When the second question was taken up, Mr. Krishnamurthi Iyer, learned Counsel for the Appellant, contended that the parties to the execution petition stand concluded by the decree passed by the trial Court and that being so mesne profits can be allowed after the decree only for 3 years from the date of decree of the trial Court. Mr. Madhavan Nair learned Counsel for the Respondents retorted by saying that he will be agreeable to accept this contention provided the decree of the trial Court is kept intact as between the parties to the execution for all purposes, that is to say, including the quantum of mesne profits decreed per year. Mr. Krishnamurthi Iyer accepted this challenge. The result is that so far as the question of mesne profits is concerned the parties for purposes of this execution petition stand regulated by the directions contained in the decree of the trial, Court. As per that decree, the decree-holders could claim 50 kottas of paddy and 833 fanams per year for 3 years from 29-6-1113, that is to say they could claim in the aggregate 150 kottas of paddy and 2499 fanams and interest thereon, from the date of the decree. This is quite apart from the claim that the Plaintiffs are entitled to, for the period before the date of decree about which there is contest in these proceedings. The contest is confined to the claim from the date of decree of the trial Court. The total claim made in the execution petition by the Plaintiffs-decree holders is short of the aforesaid aggregate that they are entitled to claim. Though the Plaintiffs decree-holders have calculated at a lower rate for a longer period the aggregate claim being within the quantum that they are entitled to claim (at a higher rate for a shorter period of three years), the claim made by the Plaintiffs decree-holders in the execution petition can be and is allowed.
The third question relates to the quantum of mesne profits. Upon this matter, the aforesaid agreement come to between the advocates to the effect that the decree of the trial Court was to regulate the relationship of the parties in the execution petition, the quantum of mesne profits per year stands fixed. Mr. Krishnamurthi Iyer however contends that the provision contained in the decree passed by the trial Court that the Defendants should pay mesne profits at a particular rate per year with interest thereon at 12 per cent with annual rests is a provision the whole of which cannot be supported. His contention is that it was not proper for the Court to have decreed compound Interest upon mesne profits which will be the result of calculating interest upon mesne profits at a particular percent per year with annual rests. There is no doubt the wording of the decree which calls a certain amount allowed per year as mesne profits and calls the further award thereon as interest. So far as the mesne profits are concerned the Court is entitled to assess and award mesne profits and in so assessing and awarding the Court is entitled further to fix certain amount per year and calculate interest upon it even with half yearly or annual rests and regard the whole amount so arrived at as mesne profits. If the award made in this case comprising various parts inclusive of interest upon interests is mesne profits it is not contended that there is anything improper in what the lower Court has done. It is not even sufficient for the Appellant to succeed to show that the direction contained in the decree passed by the Court below is improper. That decree having been passed on 29-6-13 has become final and however wrong the decree may be, it would bind the parties thereto. Unless it can be contended that the decree or any part of it is passed without jurisdiction with the result that the decree or that part is void and can be ignored a plea of impropriety of the decree or a mistake in the decree cannot be raised in execution proceedings. Learned Counsel for the Appellant was asked to cite any authority in his favour to the effect that when the Court makes directions like this in respect of mesne profits it is acting without jurisdiction. No authority was cited. When a decree though unhappily worded has to be construed it is a well-known canon of construction that it is to be construed so as to make it a valid one and also as one passed with jurisdiction.
The mode of construction that we are inclined to put upon the decrees does no violence to the language used in it and it is one that will make the decree valid rather than void. Under the circumstances, we are not inclined to accept the 3rd point raised by the learned Counsel for the Appellant.
It may be mentioned here that the concession made by the learned Counsel for both the parties upon point No. 2 as aforesaid is made for purposes of this execution proceeding and without prejudice to the claims and contentions of either of the parties as between themselves or between other persons in other proceedings, should any question hereafter arise. The appeals should therefore be dismissed but in the circumstances there will be no order as to costs.