(1) This is an appeal by the third defendant in O.S. No. 322 of 1953 against the order of the District Judge, Tirunelveli, in C.M.A. 92 of 1961, directing execution against the third defendant for mesne profits.
(2) The properties in dispute originally belonged to one Isakki Perumal. He left a will dated 16-2-1930 by which he gave a life estate in the suit properties to his wife and the remainder to a trust. The widow executed a settlement in favour of the first defendant and another, by deed dated 16-9-1944. The first defendant sold items 1, 2 and 3 to the second defendant on 18-2-1952. The second defendant sold some of the properties to the sixth defendant. The third defendant, who is the appellant herein purchased 85 trees from the second defendant. The trees were on items 1, 2 and 3. Defendants 4 and 5 are the lessees of items 1 to 3. The (Madalayam) trust filed the suit, O.S. 322 of 1953, for recovery of the items of property which Isakki Perumal bequeathed to it by will dated 16-9-1930. The suit was contested by defendants 1, 2 and 6. A decree as prayed for by the plaintiff was passed on 31-1-1955, and an appeal by defendants 1, 2 and 6. A.S. 11 of 1956, was dismissed on 22-2-1956. The decree-holder filed several execution petitions. It is unnecessary to refer to the various execution petitions filed. In E.P. 11 of 1961, the decree-holder sought to recover a sum of Rs. 533 as mesne profits, and Rs. 264 as costs. The third defendant objected on the ground that he was liable to pay mesne profits in respect of item 4, that is, for the 85 trees that were found on the land at Rs. 10 per annum, that he paid a sum of Rs. 179-12-6 towards costs on 23-8-1955, and he cannot be proceeded against except for realising Rs. 20 which will be the mesne profits for item 4 between the date of the plaint 3-12-1953 and the date of execution. It was held by both the Courts that the decree that was passed in O.S. 322 of 1953 was a joint and several one and that the decree-holder is entitled to realise the entire mesne profits from any one of the defendants. This appeal is preferred against the order dismissing the petition of the third defendant. It may also be mentioned that the third defendant filed I.A. 669 of 1961 for amending the decree in O.S. 322 of 1953 to make it clear that the third defendant was liable only regarding mesne profits for item 4. This petition was dismissed. The decree that is sought to be executed is in the following terms.
'(1) That it be and is hereby declared that the suit properties described hereunder belong to the plaintiff Madalayam and that the defendants do put the plaintiff in possession of the same;
(2) That the defendants do pay to the plaintiff future mesne profits from 3-12-1953, the date of plaint, till delivery of possession, at the rate of 11 kottahs of paddy per annum in respect of items 1 to 3 of the suit properties and Rs. 10 per annum in respect of item 4 (palmyra trees) of the suit properties'
We are concerned with the second clause in the decree. The decree is that the defendants do pay the plaintiff future mesne profits from 3-12-1953, the date of plaint, till delivery of possession, at the rate of 11 kottahs of paddy per annum in respect of items 1 to 3 of the suit properties, and Rs. 10 per annum in respect of item 4 (palmyra trees) of the suit properties. As a matter of fact, it is not in dispute that defendants 1, 2 and 6 are in possession of items 1 to 3 and they are the persons who collect the yield from the lands. It is also not disputed that the third defendant appellant is in possession of item 4, that is, the 85 trees, and the income from the 85 trees is admitted to be Rs. 10 per annum. Mr. Ramachandran, learned counsel for the appellant, would submit that the decree should be construed as reading that defendants 1, 2 and 6, who are in possession of items 1 to 3, are to pay mesne profits at 11 kottahs of paddy for items 1 to 3, and defendant 3 Rs. 10 in respect of item 4 of the suit properties. On the other hand, Mr. Hariharan, learned counsel for the respondent, submitted that the court is entitled to pass separate decrees or joint and several decrees and, in this case, the court having passed a joint and several decree the third defendant cannot be heard in execution to plead that the decree should be construed as a separate decree.
(3) There is some ambiguity in clause 2 of the decree. It is not clear whether in drafting the decree it was intended that the third defendant should also be held to be jointly and severally liable. The learned counsel for appellant relied on a decision in Topanmal v. Kundomal Gangaram, : AIR1960SC388 , where it was held that when the decree is ambiguous, it is the duty of the executing court to construe the decree, and for the purpose of interpreting the decree when its terms are ambiguous, the court would certainly be entitled to took into the pleadings. The pleadings in the case and the judgment were looked into and it is clear that the relief asked for against the third defendant was only as regards item 4. It does not also appear that the trial court intended to make the third defendant liable for the entire mesne profits. As the decree is ambiguous, the real intention can be ascertained. The contention of the learned counsel that it was not intended to make the third defendant liable for the entire decree has to be accepted. In Sheobalak Singh v. Achutanand Singh. : AIR1943Pat80 it was held that though a decree for mesne profits was passed against all the judgment debtors jointly and severally, if, in substance, the decree was against the various judgment debtors for their shares of the mesne profits, the whole amount cannot be recovered from one judgment debtor alone. Even in the absence of any direction in the decree, it was held that the executing court should apportion the amount of mesne profits leviable from each of the judgment debtors. The Patna High Court relied on a decision of the Privy Council in Gurudas Kundu v. Hemendra Kumar, ILR Cal 1: AIR 1929 PC 300 , where their Lordships observed that it would be the height of injustice to hold a defendant liable for mesne profits which he had not got but somebody else got. The two decisions were sought to be distinguished by the learned counsel for the respondent by relying on a decision in Sudarsan Prasad v. Jadunandan. : AIR1947Pat42 . It was held in that decision that the decree was intended to be joint and several, as all the defendants were trespassers and all of them intended to enjoy the property. The facts are not applicable to the present case.
(4) In the result, I agree with the contention of the learned counsel for the appellant that the decree cannot be construed as a joint and several decree. The third defendant can only be liable to the extent of his enjoyment of item 4, that is, Rs. 10 per annum.
(5) Mr. Hariharan, learned counsel for the respondent, submitted that the appellant is barred by res judicata from denying his liability, as this contention was put forward in the several execution petitions taken by the decree-holder. The learned counsel is not able to produce any execution petition in which execution was levied for the entire mesne profits against all the defendants. Therefore, it can not be said that the appellant is barred by res judicata.
(6) It was further contended that the order in I.A. 669 of 1961, wherein the petition for amendment of the decree was refused, would operate as res judicata. The court refused to amend the decree on the ground that the decree was in conformity with the judgment. So far as that decision is concerned, it would operate as res judicata, but the reasons given for the decision are not res judicata. It is open to the appellant to ask the executing court to construe the decree as it stands.
(7) In the result, I find that the third defendant is liable to pay mesne profits at the rate of Rs. 10 per annum from 3-12-1953, the date of plaint, to the date of delivery of possession, 20-1-1956. So far as costs are concerned, it is stated that the third defendant appellant has paid the entire costs. The order as to payment of the costs against the third defendant will stand and he will not be entitled to recover the costs paid. No costs throughout in these proceedings. No leave.
(8) Appeal allowed.