Govindan Madhavan Potti vs Neelakanta Iyen Subramonia Iyen

Koshi, J.—This appeal arises out of a proceeding in restitution. The facts that gave riso to that proceeding may be briefly stated as follows:

In execution of a simple money decree obtained by the Respondent in O. S. No. 124 of 1096 on the file of the Alleppey District Court, against the kirnavan and the senior anandaravan of the Appellant''s IUom, the Illom proper, ties were attached and sought to be sold. The Appellant, a junior member of the Illom sought to intervene in the exeoution proceeding and objeetai to the sale on the ground that the debt which resulted in the deoree was not valid or binding as against the Illom. The Court of execution took the view that the Appellant, not being a party to the decree, had no locus standi in that proceeding and that his remedy, if any, lay in a fresh suit. That decision was reversed on appeal in A. S. 265 of 1100 and on the authority of the Ful Bench decision reported in Sankaran K''trthavu v. Aiyappan 40 T.L.R. 151 , the High Court held that the execution Court was bound to decide the question of the binding character . of the debt in that proceeding itself and directed that Court to dispose of the matter afresh according to law in the light of the observations made in the order. (See order dated 10-8-1101 in A. S. No. 265 of 1100). While that enquiry was pending, the execution Court conducted the sale, confirmed it and delivered over the properties to the auction purchaser who was none other than the decree-holder (the Respondent) himself. The Appellant objeoted to all these steps, but his attempts were all unsuccessful in the execution Court. Against the order confirming the sale he appealed to the High Court in A. S. NO. 31 of 1105, but that appeal was dismissed on 5-5-1105 with sho observation that in case he succeeds in his challenge to the validity of the decree he will ultimately ba eatitled to restitution. After the sale was confirmed he wanted the execution Court to stay the further proceedings pending the decision of the question of the validity of the decree. The execution Court refused to grant that prayer and the appeal therefrom, A. S. 366 of 1105, was equally unsuccessful. The High Court dismissed the appeal on 6-8-1105 and directed that in case the Appellant furnished security for the interest on the sale prioe of the Illom compound, delivery of that item may be stayed. We were not told whether that oonoession was availed of or not. Another application the Appellant made to the exeoution Court was to obtain redelivery of the properties which were by th6n delivered over to the Respondent. The exeoution Court dismissed that petition as well. The appeal against that order was A.S. No. 69of 1107. The High Oourt allowed the appeal and sent the petition back for enquiry and disposal along with the petition questioning the validity of the decree. This iuidgment was pronounced on 8th Meenom 1107. While the36 two matters were pending before me exeoution Court two decrees passed against ibe Illom by the Alleppey District Court were reversed by the High Court in A. S. 367 of lios and A. S. 403 of 1108 The latter appeal was against the deoree the Respondent obtained in O. S 6 of 1106 and the former against the deoree obtained by another creditor, the Nedungadi Bank Ltd., in O. S. 28 of 1106. The deoision of the High Court in those appeals was to the effect that the debts which gave rise to those decrees were not binding on the Appellant''s Illom The two senior members of the Illom were carrying on a trade and the High Court held that -that trade was not an Illom concern. The debt sued for in O. S. 124 was a similar debt and after the deoision in the last mentioned appeals, by some process not explained to us, A. S. 6) of 1107 again came up for hearing before the High Court. The decision the Pull Bench which heard that case gave on 16-7-1116 may with advantage be quoted here:

"It is found in this oase that the promissory note amount was borrowed for the purpose of a trade conducted by Defendants 1 and 2. The dispute between the parties was as to whether the debts incurred for the purpose of this trade would be binding upon the family or not. It has been held in A. S. No. 367 of 1108 that the debts inourred for the "purpose of the trade were not binding upon the family. It was oontended that as the Petitioner was not a party to the suit his application cannot be considered under CPC (CPC) - Section 40 , and: that the matter must be agitated in a fresh suit. When onoe this matter came np here, this Court held that the dispute may b3 considered u/s 40. Whatever therefore may be the general law, in this particular case as this Court has held once thit the dispute should be adjudicated upon u/s 40 (See order dated 20-11-1101 in A. S. 266 of this Court) we hold that the matter can be gone into u/s 40.

On the rinding that the debts are not bindiog upon the family, the sale of properties whioh have been held in A. S. 367 of 1108 and A. s. 402 of 1108 to bo tarwad properties of Defendants 1 and 2 is not binding upon the tarwad. If these properties have been delivered over in exeoution they oan be recovered back on behalf of the tarwad in exeoution itself. To this extent this appeal is allowed. No costs."

The last paragraph in the above judgment has apparently no reference to the properties sold or delivered in 0. S. 124 of 1096.

After this decision the Appellant filed a petition before the execution Court consolidating the reliefs claimed by him in the petition which gave rise to A. S. 265 and the petition seeking redelivery from which order A. S. 69 of 1107 was filed. This is M. P. 2682 dated 20-4-1117, out of which the present appeal arises. The Respondent agreed to redeliver the properties back to the Illom and they were accordingly redelivered on 1-5-1118. The parties however joined issue regarding the Respondent''s liability for the profits of the properties for the period he was in possession of them. The Court had delivered the properties to him in Meenon 1105. It waa conceded that ho was liable to make good the profits from 16-7-1116, the date of the seoond deoision of the High.

Court in A. S. 69 of 1107, till 1-5-1118, the date of redelivery. The liability for the prior period was however disputed and the lower Court gave its decision in favour of the Respondent. Hence this appeal.

The facts set out above clearly show that she Illom was deprived of the possession and ''enjoyment of the concerned properties for the jperiod the Respondent was in possession of them land that that situation was brought about by (the execution Court selling those properties for a debt the Illom was not liable. It is the duty jof the Court to see that its acts do not cause any ''injury to any of the suitors and to plaoe them in the position they would have occupied but for the Court''s own erroneous decree or order. We cannot therefore find any justification for the lower Court to have held that the Illom was inot entitled to compensation from the date of jits dispossession but only from the date the ''decree was found to be invalid against it. The justice of the case demands that the Illom should be compensated for all its loss. The decision reported in Surendra Lal Chowdhury and Others Vs. Sultan Ahmed and Others, relied upon by the Court below for the view it took does not say that the liability of a person on whom the Court wrongfully conferred title to, and possession of, Immovable property to compensate the real owner for his loss will not commence until the Court itself decl&res that its previous decree or order was passed erroneously. In fact that case decides just the contrary. There it was held inter alia that a person who obtains possession of Immovable property under and by virtue of orders passed by the Court based upon what at the time was a valid decree, but has subsequently been set aside on appeal oan in no sense be regarded as a trespasser during such periol and that during such period he is liable to the real owner fpr compensation or damages and not for mesne profits in the strict seuee of the term. The Court went on to say that from the moment the previous decree is reversed it becomes his duty to vacate and hand over possession, failing which, he beaomes a trespasser and remains liable for mesne profits in such sense so long as he continues in possession. The case also decided that the measure of damages of compensation during the former period cannot be higher than during the latter period. We consider it unfortunate that the learned Judge should have used this decision as an authority for his views that the Illom cannot obtain any compensation for the period of its dispossession ending with the decision of the Court that the decree does not bind it.

Another ground on which the learned Judge bases hia decision is that the petition before him was not maintainable under any provision of the CPC (CPC). The exercise of inherent power u/s 115, Travancore CPC (Section 151 of Act V [5] of 1908) was summarily ruled out first, on the ground that the appellant had not sought to invoke that jurisdiction. Later on the order gives another reason also. Section 108 (Section 144) was found to be inapplicable as there was no. variation or reversal of the decree. As for Section 40 (Section 47) the learned Judge, no doubt, observes that the High Court had in A. S. 69 of 1107 expressed the view that that section had to be applied to the case. But the learned Judge thinks that the judgment in the said appeal had limited the relief to be granted to the Appellant to redelivery alone and that it was therefore not competent for him to grant the further relief asked for regarding mesne profits. In winding up the discussion the learned Judge reverts back to the question of the exercise of inherent power and states that so long as the High Court did not in the above appeal find its way to exercise that power in favour of the Appellant it would not be proper at the present stage of the case for a subordinate jurisdiction to exercise it.

We are afraid the decision based on these grounds cannot stand either. The learned Judge has thought that the last paragraph of the judgment in A. S. 69, dated 16th Kumbhom 1116, refers to properties sold in execution of the decree in O. S. No. 124 of 1096 The whole judgment has been extracted in an earlier part of this judgment and as already indicated we are unable to hold that the last paragraph of the judgment has any reference to the properties we are concerned with here. We have pointed out that A. S. 367 of 1108 and A. S. 402 of 1 08 arose from O. S. 28 of 1106 and O. S. 6 of 1106 respectively. With respect, we venture to observe that the last para in the judgment in A. S. 69 has oreated some confusion, but so long as the said para makes no reference to A. s. 265 or to O. S. 124, we cannot find our way to hold that the decision in A. S. 69 is a bar to the Appellant''s present claim for profits or damages in lieu thereof. There is therefore no express bar created for the present claim by that judgment.

The next question is whether there is any bar impliedly. It was contended that the cmission to ask for profits or damages in the earlier application for redelivery or in the appeal there from disentitled the Appellant to claim the same now. In the first place the present application, M. P. 2032 of 1117, was filed while the earlier application remained undisposed of and the order under appeal is, to all intents and purposes, one disposing of the earlier as well as the later application. Further the cause of action for possession is quite distinct from the cause of action for mesne profits. Even a suit for possession of land is not a bar to a subsequent suit for mesne profits of such land accrued due prior to THE institution of the suit for possession. See Mulla''s C. P.C., Edn. 11, 1941 pp 531 . The decision in Surendra Lal Chowdhury and Others Vs. Sultan Ahmed and Others, referred to earlier is also authority for the position that a claim for mesne profits is not barred by the provisions of CPC (CPC) - Order 2, Rule 2 by prior application for restoration of possession. See also Mulla''s C. P. C. Edn. 11 1941, p. 453. The Respondent was in possession of the proper ties under a voidable title and the Appellant became entitled to claim profits only when that title was avoided. The argument founded on an implied bar must also therefore fail.

Before concluding we should not omit to notice two other grounds strenuously urged be. fore us by the Respondent''s learned Advocate Mr. Nilacanta Kartha, to support the lower Court''s order, One was; the appeal itself was incompetent. This argument was based on deded cases which hold that an application for Restitution following a sale being set aside would not be a matter relating to the execution of a decree within the meaning of Section 47, CPC (CPC) (v[6] of 1908). That no doubt is the ordinary rule but this case is not a case of the sale being not aside under any provision of the CPC (CPC) Mere the Appellant as a junior member was found entitled by the High'' Court to have his objection to the excitability of the decree against the Illom properties agitated in the execution proceeding itself. In view of this, the cases relied upon by the Respondent has no application here. The decisions the High Court gave in A. S. 265 of 1100, A. S. 31 of 1105 and A. S. 60 of 1107 repeatedly said the Appellant''s objections may be heard and decided on the execution sids. The right to appeal necessarily arises from an order passed on the execution side with respect to a dispute between the decre holder and the judgment-debtor. Though the Appellant was not a party eonomine in O. S.124 of 1096 he was allowed to contest the validity of the decree as if he were actually one. It is now too late in the day to contend that the matter does not come u/s 40 or that the present appeal would not lie.

The other ground urged before us by the Respondent was that the justice of the case does not call for our interference with the lower Court''s decision. We have said that in our view justice demands that Illom should be compensated for the loss it sustained by the deprivation of its possession and enjoyment of the properties. If the Respondent got no valid title to the properties under his purchase we cannot under stand what title he could have to retain the profits thereof. The Respondent''s learned Advocate however argued that as the property was sold for a debt contracted by the karnavan and as the karnavan could not be called upon to account for the profits of the Illom properties that come into his hands the profits thereof in the hands of the creditor should not be allowed to be called in at the instance of the Illom. To say the least the argument does not commend itself to us as sound. The title to the profits should follow the title to the property and when the property reverts to the Illom the profits must follow suit.

In the result we hold that the Appellant as the representative of his Illom is entitled to the profits of the properties or damages in lieu thereof for the entire period the Illom was out of possession. The appeal is allowed with costs and the lower Court''s order refusing any relief with respect to the period prior to 16-7-1116 set aside.

The case is sent back to the lower Court for fresh enquiry and disposal according to law in the light of this decision.