V. Balasubrahmanyan, J.
1. This second appeal arises out of a suit for specific performance of an agreement to reconvey an item of immoveable property. The suit was filed by an assignee from the original vendor. The defendant who had bound himself to reconvey the property resisted this suit. He said that the agreement of reconveyance was not assignable. He put for ward other defences too. The trial Court upheld these defences and dismissed the suit. On appeal, the Sub-Court reversed this decision and decreed the suit in the plaintiff's favour.
2. The defendant has now brought this second appeal against the appellate decree. The argument of his counsel, Mr. R.G. Rajan, was however directed not so much against the decree passed by the appellate Court for specific performance, as such, but against another part of the decree to which I must now refer. It appears from the record that before the trial Court the plaintiff had also prayed for mesne profits to be directed to be paid by the defendant. The trial Court while dismissing the suit for specific performance naturally rejected this prayer for mesne profits too. The Sub-Court, however, entertained this plea and while decreeing the suit for specific performance and directing the defendant to execute a reconveyance, further directed an inquiry into mesne profits under Order 20, Rule 12 of the Code of Civil Procedure.
3. Mr. Rajan's submission in this appeal is that this part of the Sub-Court's decision is wholly misconceived. Ho said that this is not a case in which mesne profits could be directed to be paid by the defendant. He said that such a direction is oppossed to the very idea of 'mesne profits' as understood in our system of law.
4. These submissions, in my opinion, are well, founded. The question of mesne profits will ordinarily arise for considerations only in a ease where a party who is entitled to possession of property is prevented from enjoying the usnfruct or the rents and profits therefrom and the party against whom the relief is claimed had no lawful right to possession and enjoyment of the property for the duration. The question of mesne profits can seldom arise in a suit for specific performance. For in this kind of suit, the plaintiff does not sue for title, much less for possession. All he asks for is the assistance of the Court and its coercive process to acquire title, which he had failed to acquire by other means. Besides, this title which he devoutly wishes for in the suit, he can only acquire when the conveyance is effected and is duly registered, and not before, not even when the Court grants the decree. During all this period, the defendant in possession of the property might be regarded by the plaintiff as not quite justified in doing so. But the defendant's possession on that account is by no means unlawful, for he has undoubted title to the property and he retains that title till so long as conveyance effected pursuant to the decree for specific performance. In these events, there can be no question of the defendant being asked to account for any 'mesne profits' as respects the subject-matter of the suit.
5. The learned Subordinate Judge had directed the inquiry into mesne profits under Order 20, Rule 12 of the Code of Civil Procedure. But this provision is quite in appropriate. For it in terms refers to a suit for recovery of possession of immoveable property and for rent or for mesne profits. The implication is that it is only in such a suit that the Court will have jurisdiction to pass a decree for mesne profits. Not in any and every kind of suit. At all events, as I have already shown, it would be incongruous to direct mesne profits in a suit for specific performance.
6. Mr. V.C. Veeraraghavan, appearing for the plaintiff, however sought to put his client's case under a different equitable garb. He said that as long ago as 6th January, 1963 his client, the plaintiff, had deposited in Court Rs. 1,490 which represented the whole of the purchase consideration. This amount, he said, had remained locked up in Court deposit when all the while the defendant had been fighting the case and had remained merrily in possion of the same property. Mr. Veeraraghavan pleaded that even if, strictly speaking, the plaintiff was not entitled to mesne profits from the suit property, it would be for consideration whether he is not entitled to some kind of recompense for the loss of interest to the money in Court deposit for a period of ten long years and more.
7. I am unable to accept this plea. It is true that the plaintiff has sacrificed liquidity by depositing Rs. 1,490 in the Court. But he did so voluntarily and not under any order of the Court. It is quite probable that he meant it as a gesture, just to impress the Court about his earnestness and readiness to fulfil his Part of the contract of reconveyance. I guess he might have obtained, had he wished, an order from the Court to get the money in deposit suitably invested so as to avoid or reduce loss of interest. But he did not do so. In these circumstances. I do not think the defendant can be mulcted with payment of any interest for the period during which the money was in Court deposit.
8. In the result, I not only set aside the Sub-Court's determination on the question of mesne profits and its direction for an inquiry into quantum, but also reject the plaintiff's request for directing the defendant to pay interest on the amount in Court deposit. I make it clear that the Sub-Courts decree in other respects will stand. For I did not hear any argument from Mr. Rajan to show in what way the decree for specific performance passed by the Sub-Court was erroneous in point of law.
9. The second appeal Is thus allowed in part-There will be no order as to costs.