(1) This appeal is preferred by the decree-holder against the order of the courts below allowing the application E. A. No. 406 of 1961 filed by the judgment-debtor-respondent for recalling the delivery warrant and for dismissing the E. P. No. 332 of 1961 filed by the decree-holder for possession.
(2) The appellant decree-holder filed a suit O. S. 518 of 1962 for possession and for past and future mesne profits against the defendant. The suit was dismissed. But on appeal a decree was granted on 4-1-1961 in A. S. 281 of 1957. The decree-holder filed E. P. 332 of 1961 and delivery of items 2 and 3 was ordered on 23-9-1961. The plaintiff in pursuance of an agreement between the parties executed a release deed relinquishing all his rights on 22-3-1961. The present application E. A. 406 of 1961 out of which this civil miscellaneous second appeal arises was filed by the judgment-debtor for cancellation of the delivery warrant and for dismissal of the execution petition.
(3) The trial court allowed the petition and recalled the delivery warrant and dismissed the execution petition filed by the decree-holder. On appeal the Additional Subordinate Judge, Cuddalore confirmed the order of the trial court and dismissed the appeal.
(4) In this second appeal, Mr. Dolia, learned counsel for the appellant, submitted that the decree passed in the suit being one under O. 21, R. 2, C.P.C. As there is no certified adjustment under O. 21, R. 3 the executing court ought not to have recognised the adjustment relied on by the judgment-debtor.
(5) It is admitted that the decree that was passed in A. S. 281 of 1957 was a composite decree granting the relief for possession as well as for mesne profits past and future (to be ascertained). It was contended by the learned counsel that a decree for mesne profits to be ascertained is money payable under a decree under O. 21, R. 2 C.P.C. and therefore, an uncertified adjustment ought not to have been recognised. The question for consideration in this appeal is whether money payable under a decree under O. 21, R. 2 would include a decree for unascertained mesne profits. In this connection S. 73, O. 21, R. 42 and O. 21, R. 53 C.P.C. may be referred. Section 73 provides that:
"Where assets are held by a Court and more persons than one have before the receipt of such assets, made application to the Court for the execution of decree for the payment of money passed against the same judgment-debtor, and have not obtained satisfaction thereof, the assets after deducting the costs of realisation, shall be rateably distributed among all such persons".
While construing the words "decrees for the payment of money" it was held in Ramaswami Iyer v. Rama Iyer (1892) 2 Mad LJ 284 following the decisions in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee, (1867) 8 Suth WR 9 and in Viraraghava v. Varada, (1882) ILR 5 Mad 123 that the word 'decree' in S. 232 in Act VIII of 1859 was a decree for money in the sense that it represented the sum of money to be ascertained and that the holder of a decree for unascertained mesne profits is of a money decree for the purpose of claiming rateable distribution under Section 295 (present S. 73). In (1882) ILR 5 Mad 123 it was held that S. 295 entitles all decree-holders for money to apply for distribution and that the decree held by the petitioner for mesne profits was a decree for money. It was further held that although the amount was still uncertain, the petitioner had applied to the court to execute that decree and therefore he came within the purview of S. 295.In Ramaswami Iyer v. Vedambal Ammal, AIR 1934 Mad 602 a Bench of this court cited with approval the decision in (1882) ILR 5 Mad 123. It was held that a holder of a decree for unascertained mesne profits who has applied for the ascertainment of the amount thereof and for attachment of immoveable property under O. 21, R. 42 comes within the purview of S. 73 and is entitled to share rateably with the attaching creditor in the assets realised. The Court cited with approval Mullah's Commentaries on the Civil Procedure Code, which is in the following terms:
"A decree for the payment of mesne profits is a decree for the payment of money within the meaning of this section, notwithstanding that the amount of mesne profits has not yet been ascertained. The holder of such a decree who has applied for attachment under O. 21, R. 42 (Code of 1882, S. 255) is entitled to a rateable distribution with other decree-holders under this section".
On the authority of the three decisions cited above, (1892) 2 Mad LJ 284, (1882) ILR 5 Mad 123 and AIR 1934 Mad 604 it is clear that a decree for payment of mesne profits is a decree for payment of money under S. 73 C.P.C. It has also been held that payment of money in O. 21, R. 53 includes a decree for unascertained mesne profits. Mr. Sundaram Iyer, learned counsel for the respondent, sought to contend that the words decree for the payment of money and a decree directing enquiry into mesne profits are treated separately in O. 21, R. 42 and for the purpose of attachment a decree directing an enquiry into mesne profits is taken as a case of an ordinary decree for payment of money for the purpose of attachment and the use of the two separate words would itself show that a decree for enquiry into mesne profits is not the same as a decree for the payment of money. This contention cannot be upheld. Though Mr. Sundaram Iyer is justified in his submission on the wording of O. 21, R. 42, it is clear that the words decree for the payment of money have been used in the decisions cited above as including a decree for payment of mesne profits unascertained. Finding himself unable to contend that a decree for payment of money would not include a decree for unascertained mesne profits, learned counsel sought to rely on the wording of O. 21, R. 2. He submitted that the words "money payable under a decree" would only refer to money payable at the time when the decree was passed, that is an ascertained sum of money payable on the date of the decree. The meaning of the word payable is given in the Webster's New International Dictionary as follows:
"1. That may, can, or should be paid; justly due... 2(a) That may be discharged or settled by delivery of value (b) That is to be paid (by any particular person) as bills payable, also matured or maturing due."
The word payable would include any bill matured or maturing, an amount that has to be paid. Order 21, R. 1 also provides that all money payable under a decree shall be paid. I do not see any ground for restricting the meaning of the word payable to an ascertained sum of money payable at the time of the decree. There is nothing to indicate that the amount should have been ascertained already. The natural meaning to be given to the word payable would be money that may be payable in future on ascertainment under a decree passed by the court. Therefore, I hold that a decree for unascertained mesne profits would be money payable under a decree under O. 21, R. 2 and an adjustment of the decree without a certificate of the court cannot be recognised by the court executing the decree. It was contended that the certifying rule, O 21, R. 2 clause (3) is restricted only to payment of money. The contention cannot be accepted for clause (3) includes not only payment, but also adjustment and the word adjustment would refer to adjustment in whole or in part of a decree of any kind.
(6) Mr. Sundaram Aiyar learned counsel for the respondent did not rely on the decision inNarayanaswami v. Rangaswami, AIR 1926 Mad 749 though it was relied on by the lower court. In that case the decree provided that in case the defendants were to pay to the decree-holders Rs. 17000 within two years certain property should be reconveyed to them. But if default be made in such payments the decree-holders themselves should enjoy the properties with absolute rights. There was no direction in the decree to the defendants to pay any money and therefore there was no money payable under the decree. This decision has no application to the facts of the present case where there is a direction to the defendant to pay the mesne profits.
(7) In the result, the contentions of the learned counsel for the appellant are upheld and this appeal is allowed with costs. E. A. 406 of 1961 is dismissed and E. P. 332 of 1961 is ordered. Leave granted.
(9) Appeal allowed.