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Vellathusseri Chakkala Kumpil Pankunni Menon Vs. Vellathusseri Chakkala Kumpil Raman Menon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad650; (1931)61MLJ596
AppellantVellathusseri Chakkala Kumpil Pankunni Menon
RespondentVellathusseri Chakkala Kumpil Raman Menon
Cases ReferredRajah of Bobbili v. Ayyagari Sodemma
Excerpt:
.....based upon a compromise between the parties. section 34(2) is not of much help in such oases as the failure to mention interest explicitly is not decisive when the expression 'mesne profits',which ordinarily includes interest, is used......referred for the decision of the full bench is:whether where a decree of court which awards mesne profits under rule 12 of order 20 of the code of civil procedure is silent as to interest, it is open to the executing court to fix the rate of interest and to execute the decree allowing interest.2. in a suit for the recovery of possession of immovable properties and for mesne profits, the court, if it finds the plaintiff's case to be proved, may pass a decree (a) for the possession of the property; (b) for mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to the mesne profits; and (c) directing an inquiry as to the mesne profits from the institution of the suit until the delivery of possession to the.....
Judgment:

Anantakrishna Aiyar, J.

1. The question referred for the decision of the Full Bench is:

Whether where a decree of Court which awards mesne profits under Rule 12 of Order 20 of the Code of Civil Procedure is silent as to interest, it is open to the executing Court to fix the rate of interest and to execute the decree allowing interest.

2. In a suit for the recovery of possession of immovable properties and for mesne profits, the Court, if it finds the plaintiff's case to be proved, may pass a decree (a) for the possession of the property; (b) for mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to the mesne profits; and (c) directing an inquiry as to the mesne profits from the institution of the suit until the delivery of possession to the decree-holder, etc.; under Rule 12(2), where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the mesne profits-shall be passed in accordance with the result of such enquiry.

3. When, therefore, the Court holds an enquiry in respect of the amount of mesne profits, it has to pass 'a final decree' incorporating the amount fixed by it as the result of the enquiry made regarding the amount of mesne profits. According to the definition of the expression 'mesne profits' contained in Section 2(12) of the Code of Civil Procedure, 'Mesne profits of property' means 'those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits'. The result is that though the first decree (which would be a final decree so far as the delivery of the property is concerned, but only a preliminary decree in so far as it directed an enquiry as to the mesne profits--past or future), be a decree for 'mesne profits' merely, yet having regard to the definition of the term 'mesne profits' mentioned above, the Court which inquires into the amount of mesne profits should award to the successful plaintiff not only the profits which the defendant in wrongful possession actually received or might with ordinary diligence have received from the property during the period in question, but also award 'interest' on such profits. No separate or specific direction in the first decree as regards the award of interest is necessary to enable the Court when enquiring into the amount of mesne profits to pass a decree for interest also on the said amounts of profits, under Order 20, Rule 12(2), Code of Civil Procedure. The questions--whether mesne profits should be awarded or not, and, if so, the period for which the same should be awarded--are questions to be decided by the Court which passes the first decree under Order 20, Rule 12(1), Code of Civil Procedure. 'Mesne profits are in the nature of damages which such Court may mould according to the justice of the case.' It may, having regard to the circumstances, decline to award any mesne profits at all; or limit the period for which such profits are to be awarded; or give specific directions as to how the same should be calculated having regard to the special circumstances of the case. Similarly, such Court has jurisdiction to direct that no interest at all be awarded to the plaintiff, or to fix the rate of interest in the circumstances. All these are open to the Court which passes the first decree under Order 20, Rule 12(1). But if that Court simply passes a decree for 'mesne profits' for a particular period, then it is no more open to the Court inquiring into the matter under Rule 12(2) either to refuse mesne profits at all, or to limit the period for which profits should be decreed, or to decline to award any interest at all, though it is open to it to fix the amount of such profits and also to fix the rate of interest. The Court when passing the final decree fixing the amount of mesne profits under Order 20, Rule 12(2) has, therefore, to fix the amount of profits and also the rate at which interest on the amount ascertained by it should be awarded to the plaintiff. If for any reason it should decline, or omit, to award interest in the final decree, the party feeling aggrieved thereby should take appropriate proceedings either by way of appeal or otherwise, to have interest included and the decree set right by its inclusion. If, however, he should allow such a decree to become final, then he could not in execution proceedings claim interest on the amount mentioned in the final decree. It is a settled principle of law that when a decree is unambiguous on its face, the executing Court cannot go behind the decree. A decree, even though it may not be according to law is binding and conclusive between the parties until it is set aside either on review, appeal or revision. The Court executing a decree cannot alter, vary, or add to, the terms of the decree under the guise of executing the decree--(questions of adjustment of decrees by consent of parties apart). When a decree is ambiguous, it has been held that a reference to the pleadings and judgment is legitimate. If the decree is based upon, or refers to, another document, then reference to the same in such cases would be permissible, in order to understand what the decree really means. Though therefore the executing Court is entitled, and is in fact bound, to construe the decree of which execution is sought, it is not entitled to add to the terms of the decree. If on its construction of the decree, the executing Court comes to the conclusion that the decree does not award interest on the amount of profits mentioned in the final decree, it is not open to the executing Court to allow execution for interest; it is surely not open to the executing Court to fix the rate of interest itself when the same has not been fixed in the final decree. As already mentioned, it is a question of the construction of the final decree in each case, whether the same either specifically, or by necessary reference to the documents referred to by it, awards and fixes the rate of interest; but when the final decree does not award interest in that manner, it is clear that it is not open to the executing Court to fix the rate of interest and then to execute the decree allowing interest.

4. Great reliance was placed by the learned advocate for the plaintiff--decree-holder-appellant--on the decision of the Privy Council in the case reported in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy . To understand that decision correctly, it is necessary to remember that under Section 211 of the Code of Civil Procedure (Act XIV of 1882) in force at that time, 'When the suit is for the recovery of possession of immovable property yielding rent or other profits, the Court may provide in the decree for payment of rent, or mesne profits in respect of such property from the institution of the suit until the delivery Of possession to the party in whose favour the decree is made...with interest thereupon at such rate as the Court thinks fit.'

5. Under Section 212, 'when the amount of mesne profits is disputed, the Court may either determine the amount by the decree itself, or may pass a decree for the property and direct an enquiry into the amount of mesne profits and dispose of the same on further orders'.

6. Section 244 of the same Code enacted that 'questions regarding the amount of any mesne profits as to which the decree has directed enquiry shall be determined by order of the Court executing a decree and not by a separate suit'. Accordingly, the Court, after passing a decree for mesne profits, proceeds by subsequent proceedings to enquire into the 'amounts of such mesne profits, and, in the result, fixes the amount due by the one party to the other. Under the definition of the word 'decree' in Section 2 of the Code of 1882, 'an order determining any question mentioned or referred to in Section 244, but not specified in Section 588' is specifically mentioned as coming within the definition of a 'decree'. The explanation attached to Section 211 is to the following effect:

Mesne profits mean those profits which the person in wrongful possession of such property actually received .... together with interest on such profits.

7. Under Section 196 of Act VIII of 1859, 'the Court may provide in the decree for the payment of mesne profits... with interest thereupon at such rate as the Court may think proper.' That Act did not contain any definition of 'mesne profits'. Section 211 of Act X of 1877 enabled 'the Court to provide in the decree for payment of mesne profits, with interest thereupon at such rate as the Court thinks fit,' and, at the same time added an explanation to the effect that 'mesne profits' of property mean 'those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom'. By Act XII of 1879, the words 'together with interest on such profits' were added to the explanation. Section 211 of Act XIV of 1882 reproduced the explanation as amended by the Act of 1879. Therefore, after 1879 the expression 'mesne profits' includes interest on such profits.

8. The appeal before the Privy Council was against the order of the Court fixing the amount of mesne profits in the proceedings undertaken to inquire into the amount of mesne profits in pursuance of a decree passed for land and mesne profits on 23rd December, 1883. The Court of first instance awarded interest on the amount of profits which it held should be awarded to the successful decree-holder; but the High Court declined to grant interest. On appeal their Lordships of the Privy Council held that the successful plaintiff was entitled to interest also on the amount of profits, and therefore they reversed the decision of the High Court and restored the decision of the Subordinate Judge allowing interest on the profits as ascertained, year by year.

9. The following passages at page 967 of the report throw light on the point:

The learned Judges say that the Court has still jurisdiction to give or refuse interest as it chooses. Their Lordships agree, because mesne profits are in the nature of damages which the Court may mould according to the justice of the case. But the question is what is the effect of a decree which grants mesne profits and says nothing about interest, which, as their Lordships think, is the proper construction of the decree in this suit. The learned Judges treat that silence as equivalent to a decision that there shall be no interest. But then it is difficult to see what effect is given to the alteration made in Section 211 in the year 1882. Its obvious effect is to provide that a simple decree for mesone profits shall carry interest on them. No reason has been assigned for holding the true effect to be other than the obvious one. If the Court does not intend to give interest it should say so. The learned Judges give reasons for thinking' that interest ought not to be given in this case. But in execution proceedings we are only construing the decree and not considering its merits,' Girish Chunder Lahiri v. Shoshi Shikhareswar Roy (1907) 6 C.L.J. 462.

10. When therefore a decree granted mesne profits but said nothing about interest, their Lordships held that the Court which enquires into and fixes the amount of profits should award interest on the amount of profits ascertained year by year. As the appeal to the Privy Council was from the decision of the High Court passed in the proceedings taken to ascertain the amount of profits, the Privy Council modified the High Court's decision and allowed interest on the amount of profits ultimately fixed by the Court. If in any case the plaintiff--decree-holder--be not satisfied with the decree of the Lower Court fixing the amount of profits but not allowing interest on the profits as ascertained year by year, it was open to him to appeal against that decree and urge in support of his appeal the decision of the Privy Council in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy He, however, should not allow the Lower Court's decree to become final; otherwise proceedings to ascertain the amount of mesne profits would have ended, and the decree would have become final. What remains in such a case would be to take execution only in respect of the amount mentioned in the final decree. Having regard to the principle laid down by the Privy Council in various cases, that the Court executing a decree could not go behind the decree, nor alter, vary, or add to the terms of the decree, 1 am clear that the appellant's contention that it is, open to the Court which executes a final decree fixing the amount of mesne profits but silent as regards the award of any interest or the rate thereof, to make up the omission and itself fix a rate of interest and then allow execution for the interest so fixed, is untenable.

11. Under the present Code of Civil Procedure the amount of mesne profits is enquired into and fixed, and a final decree regarding the same is passed under Order 20, Rule 12(2). Such a decree is open to appeal in the manner provided by the Code but unless appealed against, at the stage when the execution of the same is sought the executing Court could not award interest or fix the rate of interest when the final decree is silent on those matters.

12. Under the Code of 1882, first a decree for immovable property and also for mesne profits was passed; by subsequent orders, on proceedings taken to inquire into and ascertain the amount of such mesne profits decreed to the plaintiff, the Court fixed the amount; in doing so, the Court could allow interest. Such orders fixing the amount were treated as 'decrees' within the definition of the word 'decree' in Section 2, and were open to appeal. The Appellate Court could, if it chose, modify the amounts awarded by the Lower Court, and fix such rate of interest as it, in its discretion, thought fit; but when once the amount had been finally fixed in those,, proceedings, there is no authority to support the contention that the executing Court could either alter the figures, or award interest, or fix for the first time, or change the rate of interest.

13. This is the view that was taken by the Calcutta High Court in Harmanoje Narain Singh v. Ramprosad Singh1 and Narendra v. Byomkesh (1919) 30 C.L.J. 205 and in this Court by Justice Madhavan Nair in the judgment now appealed against, and by Justice Wallace in the case referred to in the Order of Reference to the Full Bench. A Bench of this Court would seem to have taken a contrary view in Rajah of Bobbili v. Ayyagari Sodemma : (1927)53MLJ619 . Of course we are not concerned with the construction put by the learned Judges in Rajah of Bobbili v. Ayyagari Sodemma : (1927)53MLJ619 on the decree which was sought to be executed in that case; for, as I have already mentioned, the question of construction of a decree is for the Court which executes the decree; but there are certain observations in the judgments of the learned Judges which seem to me, with all respect, to be unsustainable. At page 621 it is remarked:

There remains the question whether the executing Court was competent to grant interest, no express provision for interest being made in the decree....

14. At p. 623 reference is made to the passage already extracted from p. 967 of the Privy Council judgment in Girish Chunder Lakiri v. Soshi Shikhareswar Roy . The inference is drawn from that passage that 'it is competent to an executing Court to grant interest when no express provision for interest is made in the decree.' A similar reasoning is adopted in the judgment of the other learned Judge at pages 626 and 628 of the report. For reasons already mentioned, the learned Judges do not seem to have attached due weight to the circumstances that the observations relied on were made by the Privy Council in the appeal preferred against the decision of the Court fixing the amount of profits, in which case it follows that the Appellate Court has got full powers in the matter of interfering with the amount awarded by the Lower Court and also to award such rate of interest as the Appellate Court thought fit. If the appeal before the Privy Council arose, not against the decree fixing the amount of profits, but against orders passed in execution proceedings undertaken to realise the, amount of profits finally fixed in proper proceedings by the Court, then undoubtedly the observations would be relevant, and in fact, conclusive, on the question. I am therefore unable to agree with the view taken by the learned Judges that 'the executing Court was competent to grant interest when no express provision for, interest was made in such a decree.'

15. The decisions of the Allahabad High Court do not seem to be uniform--the earlier decisions supporting' 'the position taken up in Harnianoje Narain Singh v. Ramprasad Singh (1907) 6 C.L.J. 462, whereas the later decisions seem to take a contrary view.

16. Decrees should be clear and self contained as far as possible, and difficulties would in most cases be avoided if Courts bestow proper attention in passing such decrees'.-

17. It is clear that the executing Court would not be warranted in fixing the rate of interest when the Court which passed the decree fixing the amount did not do so. Whatever other reliefs the decree-holder might have in such circumstances, it seems to me that it is not open to the executing Court to fix the rate of interest and to execute the decree allowing interest where the decree of Court which awards mesne profits is silent as to interest.

18. For the above reasons, I would answer the question referred to us in the negative.

Reilly, J.

19. I agree that, if a decree for mesne profits is not only silent in regard to interest but properly interpreted does not award interest the executing Court cannot allow interest. I agree that an executing Court can never grant interest on mesne profits unless interest has been explicitly or implicitly awarded by the Court which fixes the mesne profits. The duty of the executing Court in this, as in other cases, is to carry out the decree, not to add to it nor vary it in any way; but it is a duty not always easy to perform. The absence of the word 'interest' from the decree is not always decisive. 'Mesne profits' by the definition of that expression in Section 2(12), Code of Civil Procedure, means (1) 'those profits which the person in wrongful possession .... actually received or might with ordinary diligence have received', which I will call the 'net income', plus (2) interest on that net income. But it is open to the Court which makes the decree to award the net income without also awarding interest, and, if that is done, the duty of the executing Court is merely to carry out the decree so made. The executing Court however sometimes finds a difficulty because the effect of the decree in this respect is not clear. The Court which makes the decree should always make its meaning clear but sometimes does not do so. The executing Court has then the duty of interpreting the decree. Cases are met in which the decree first awards 'mesne profits'--which in itself by the definition in the Code means net income plus interest--and then goes on to specify in kind or in money the rate of the net income. When the decree is framed in that way, the proper interpretation of it is in my opinion that the Court making the decree intended to give the net income fixed and also by implication in the use of the expression; 'mesne profits' intended to give interest, and, the interest not being specified, will be at the Court rate, namely, 6 per cent. per annum. In other cases without saying anything explicitly about interest a lump sum is fixed either as total or for each; year in such a way as to indicate that is all that is awarded--perhaps because interest has been calculated and included in the lump sum, perhaps because it has been refused. If it is clear that nothing more than the lump sum has been awarded, the executing Court is not interested in the reason but has only to carry out the decree as made. But the exact significance of the decree is again a matter of interpretation. Sometimes the fact that interest is mentioned in respect of some other amount in the same decree but is not mentioned in respect of the amount described in the decree as 'profits' or 'mesne profits' indicates that interest on the net income has been refused. There again the executing Court has to interpret the decree and so ascertain the intention of, the Court which made it. All these are instances of badly drawn decrees, the results of careless work. But unfortunately such decrees are sometimes--indeed too often--made, and executing Courts have to make the best of them. A little time ago my brother Anantakrishna Aiyar and I had to interpret a decree for mesne profits in A.A.O. No. 348 of 1928. There the decree awarded 'mesne profits' and then fixed a rate of net income in money without mentioning interest explicitly. We interpreted that to mean that the net income mentioned and interest at 6 per cent. were awarded as mesne profits. The reason that decree was not better worded may have been that it was mainly based upon a compromise between the parties. But it is not only compromise decrees which are worded obscurely in this respect, and, where there is obscurity, the executing Court has the duty of interpretation. Section 34(2) is not of much help in such oases as the failure to mention interest explicitly is not decisive when the expression 'mesne profits', which ordinarily includes interest, is used.

20. I cannot answer the question put to us with the simple 'Yes' or 'No'. My answer is that, even if the decree 'is silent as to interest' in the sense that the word 'interest' does not appear in it, nevertheless, if by the use of the expression 'mesne profits' combined with a reference to a rate of income or in any other way the decree indicates that interest is awarded, the executing Court must give it and, no rate of interest being mentioned, should give it at the Court rate of 6 per cent. But this result, when reached, must be reached solely by interpretation of the decree, not by the use of any supposed discretion in the executing Court. And, as the Court making the decree has the right to refuse interest, any indication that it has done so must be allowed full weight by the executing Court. 'Silence' so complete that there is no indication at all that any interest has been awarded would itself be an indication that interest has been refused. In every case in which the intention of the decree is not expressed with unquestionable clearness it is the duty of the executing Court to ascertain that intention by interpretation. But I may add that it is the duty of the Court making the decree to make its intention in the matter so clear that there is no room for interpretation.

21. If I may express an opinion regarding the decree in the suit out of which this reference has arisen, I interpret it as not awarding interest on the future mesne profits fixed, an indication of that intention in spite of the use of the expression 'mesne profits' being found in the fact that no interest is mentioned in respect of those profits, though interest is explicitly awarded on the past kannipattam.

22. I agree that in reading the judgment of their Lordships of the Judicial Committee in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy we must remember that they were dealing with a case in which mesne profits had to be fixed in execution under the Code of 1882, a duty which can never properly fall on the executing Court under the present Code. I agree also that the application of that judgment in Rajah of Bobbili v. Ayyagari Sodemma : (1927)53MLJ619 was incorrect, though the interpretation which the learned Judges in the latter case put upon the decree before them, which had not been drawn with sufficient care, may have been right.

Ramesam, J.

23. I agree with the judgment of Anantakrishna Aiyar, J., and have nothing to add.

Sundaram Chetty, J.

24. I agree with the judgment of my learned brother Anantakrishna Aiyar, J.

Horace Owen Compton Beasley, Kt., C.J.

I agree also.


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