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Subramaniyan Vs. Lakshmi Amma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 243 of 1967
Judge
Reported inAIR1972Ker194
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 12
AppellantSubramaniyan
RespondentLakshmi Amma
Appellant Advocate T.S. Venkiteswara Iyer, Adv.
Respondent Advocate S. Narayanan Potti, Adv.
DispositionAppeal dismissed
Cases ReferredKrishnan v. Kandan Velu
Excerpt:
- .....the case of the decree holder is that the final decree passed in the suit enables him to claim mesne profits till the property is put in his possession by the judgment-debtors and as such he is entitled to recover mesne profits for more than three years. the trial court accepted this plea and allowed him to recover mesne profits for more than 3 years; but in appeal, the learned subordinate judge has held otherwise. i think the view taken by the learned appellate judge is the correct one and his order has only to be upheld. the decree must be construed with reference to 0rder 20. rule 12. civil p. c., under which no mesne profits beyond three years from the date of decree could be collected. dealing with the scope of order 20. rule 12 a division bench of the travancore high court held.....
Judgment:

K. Sadasivan, J.

1. The sole question arising in this second appeal is whether mesne profits for more than 3 years could be recovered by the decree holder. The case of the decree holder is that the final decree passed in the suit enables him to claim mesne profits till the property is put in his possession by the judgment-debtors and as such he is entitled to recover mesne profits for more than three years. The trial Court accepted this plea and allowed him to recover mesne profits for more than 3 years; but in appeal, the learned Subordinate Judge has held otherwise. I think the view taken by the learned appellate Judge is the correct one and his order has only to be upheld. The decree must be construed with reference to 0rder 20. Rule 12. Civil P. C., under which no mesne profits beyond three years from the date of decree could be collected. Dealing with the scope of Order 20. Rule 12 a Division Bench of the Travancore High Court held as early as in 1945 that the decree regarding mesne profits should always be in conformity with Order 20, Rule 12 and that no mesne profits could be decreed for a period in excess of 3 years from the date of the decree. For mesne profits beyond three years the plaintiff must be referred to a separate suit; (vide Govindan Sadasivan v. Raman Narayanan, 1945 Trav LR 715). A Division Bench of the Allahabad High Court in Kumar Jagadish Chandra v. Bulaqi Das, AIR 1959 All 242 held that:--

'Clause (c) of Sub-rule (1) of Order 20, Rule 12, Civil P. C. contemplates a decree directing an inquiry as to mesne profits from the institution of the suit until one of the three events mentioned in Sub-clauses (i), (ii) and (iii) whichever of them occurs first. Sub-rule (2) contemplates the passing of a final decree in respect of mesne profits in accordance with the result of that inquiry. The final decree contemplated will state the amount of mesne profits which have to be paid by the judgment-debtor to the decree holder, and therefore will have to take into consideration the date upto which mesne profits are to be paid. Such date will be either the date of delivery of possession to the decree-holders, or the date of relinquishment of possession by the judgment-debtor with notice to the decreeholder through the court, or the date of the expiration of three years from the date of the decree, whichever of these alternative dates happen to be the earliest. A decree for mesne profits till delivery of possession cannot be interpreted as a decree for the realisation of the mesne profits till the actual delivery of possession which may never take place. It cannot be contemplated that the decree-holders by failing to take action to obtain possession could create a right in themselves to recover mesne profits upto an imaginary date for the delivery of possession.'

A Division Bench of the Madras High Court in Godavarti Raia v. U. M. Ramchandraswami Varu, AIR 1943 Mad 354 held that:--

'where the decree is one for possession and mesne profits until delivery, it must be read as one providing for mesne profits till delivery of possession subject to the statutory limit of three years.'

This Court has held in Mohammed Rowther v. Velayudhan, 1963 Ker. LJ 812 that:

'the court must have intended to conform to the law as enacted in O, 20, R, 12. The decree may be supplemented by the law on a point upon which it is silent but into it cannot be introduced a provision which would be contrary to the law and ultra vires on the part of the court pronouncing it. Hence, no mesne profits after the period of three years of the decree can be realised.'

The matter arose before the Supreme Court in C. Subbanna v. K. Subbanna, AIR 1965 SC 1325 and it was held therein that :--

'Rule 12, Order 20 does not empower a court to direct an inquiry and pass a final decree with respect to mesne profits for a period exceeding 3 years from the date of the decree.

'It is open to the court to construe the direction in the preliminary decree about the inquiry with respect to future mesne profits when such direction is not so fully expressed as to cover all the alternatives mentioned in Order 20, Rule 12 (1) (c), Civil P. C. and to hold that the decree be construed in accordance with those provisions.

Hence, where a preliminary decree for possession passed by the High Court directed the trial Court to enquire about mesne profits from date of institution of suit and pass a final decree for payment of the amount found due upto delivery of possession the decree must be construed in conformity with requirements of Order 20. Rule 12 (1) (c) and the decree holder cannot get mesne profits for a period beyond three years from the date of the High Court decree.'

My attention in this connection was invited by the learned counsel for the respondents to a decision of Kumara Pillai. J., of this Court in Krishnan v. Kandan Velu, 1955 Ker LT 295 = (AIR 1955 Trav Co 233) wherein the learned Judge held:--

'Order 20. Rule 12 does not contain any absolute prohibition against giving decree for future mesne profits beyond throe years from the date of the decree and, therefore, the power given to the court by Order 23, Rule 3 cannot be deemed to be curtailed by Order 20, Rule 12.'

But in that case the position was absolutely different. There the suit was compromised and in the compromise petition the defendants had undertaken to pay mesne profits beyond the statutory period. So it was held by the learned Judge:--

'Under Order 23. Rule 3. Civil P. C. the court is bound to pass a decree in terms of the compromise petition if the agreement embodied in the compromise petition is lawful and relates to the suit. The mere fact that under Order 20. Rule 12. Civil P. C., the court has no power to pass a decree for mesne profits for any period beyond the expiration of three years from the date of the decree will not render an agreement by the defendant to pay mesne profits for the period beyond three years illegal or void. There is nothing unlawful or inherently illegal in an agreement by the defendant to Pay mesne profits for any period beyond the expiration of three years from date of the decree.'

Thus it was a case of agreement by the defendants to pay mesne profits for a particular period which was in excess of three years prescribed by the statute. In the case on hand we are not confronted with any such agreement and as such the general law regarding mesne profits must apply- The decree holder, therefore, cannot claim mesne profits for any period beyond three years.

2. The judgment of the learned appellate Judge is hence correct and in confirmation of it this second appeal is dismissed.


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