Kerala Varman Thirumulpad vs Parameswaran Othikkan Nambuthiri and Others

Koshi, J.—Defendant 1 in O.S. NO. 338 of 1121, on the file of the Trichur District Munsiff''s Court has preferred this second appeal, In a previous suit on a mortgage (O.S. No. 139 of 1112) in the Trichur District Court it was found that the Appellant who had obtained possession of the plaint property pursuant to a Court-sale held in execution of a decree obtained on a puisne mortgage was entitled to a prior charge to the extent of Rs. 66-2-0 and interest thereon from 4-2-1108. In execution of the decree in O.S. No. 139 of 1112 the plaint property was sold subject to this charge. The decree-holder-purchaser has brought this suit to redeem the same.

There was no dispute worth the name between the parties as to the auction purchaser-Plaintiff''s right to redeem or the price he had to pay for the same. The parties, however, joined issue as to the Appellant''s liability to account for the profits. The trial Court held that the Appellant became liable to account for the profits after the Plaintiff-Respondent became the Court-auction-purchaser and further found that the liability commenced with the agricultural year 1118. The property was and is even now outstanding in the possession of Defendants 2 and 3 on varumpattom and for the arrears of pattom for the years 1118 and 1119 the Appellant had obtained a decree in O.S. 146 of 1120 on the file of the Trichur District Munsiff''s Court. In the suit the Plaintiff-Respondent asked for and obtained an injunction restraining the Appellant from executing that decree. That in fact was one of the reliefs claimed and as the trial Court granted that relief by its decree the Appellant preferred an appeal to the Trichur District Court seeking to have that injunction cancelled. That Court, however, confirmed the trial Court''s decision and hence this second appeal.

A faint attempt was made before us by the Appellant''s learned advocate that the decree in O.S. 139 of 1112 had once for all determined the rights and liabilities of the parties with respect to the plaint property and as that decree did not mike the Appellant liable to account for the profits it was not open to the Court now to impose a liability on him in that behalf and that the Courts below went wrong in holding him liable to account for the profits subsequent to the Plaintiff-Respondent''s purchase of the property in execution of the decree in O.S. NO. 139 of 1112. Though the Plaintiff-Respondent''s claim for profits for any prior period was inadmissible and therefore rightly negatived by the Courts below, there is no substance in the contention that after the Plaintiff-Respondent became the Court-auction-purchaser of the property he cannot claim the profits thereof from the person or persons in possession. We therefore hold that the lower Courts were right in holding the Appellant liable to account for the profits commencing from the agricultural year 1118. We cannot, however, see eye to eye with the Courts below with the procedure they directed the Plaintiff-Respondent to adopt for the consumption of the relief for accounting granted to him. We fail to appreciate how the injunction asked for and granted could entitle the Plaintiff-Respondent to collect the decree amount or the rent for the subsequent years from Defendants 2 and 3. In our opinion the Plaintiff-Respondent ought not to have been allowed to realise any pattom before ho paid the amount of the prior charge to the Appellant.

We would accordingly cancel the in junction and in its place make the following direction as to how the rights and liabilities of the parties should be adjusted:

(i) The Plaintiff-Respondent should pay and the Appellant should receive Rs. 66-2-0 and interest thereon at 6 per cent, per annum from 4-2-1108 till date of payment towards the price of redemption. Time for payment three months.

(ii) The Appellant is liable to account to the Plaintiff-Respondent for the profits of the property from 1118 onwards at the rate of 60 paras of paddy and one bunch of bananas a year as provided for in the lease deed executed by Defendants 2 and 3 to the Appellant. Whatever amounts the Plaintiff-Respondent has realised from these Defendants shall be given credit for in the accounting.

(iii) Unless and until the Plaintiff-Respondent pays into Court within the time specified above the amount of the prior charge with interest he shall not collect nor shall Defendants 2 and 3 pay the rent to him. The Appellant will be free to collect the same from Defendants 2 and 3 till all amounts due to him are paid, i.e., the Plaintiff-Respondent''s right to collect rent shall commence only after the Appellant is redeemed; but the liability to account shall continue and cease when redemption takes place.

(iv) The Appellant will be free to execute the decree in O.S. No. 146 of 1120, for all amounts due thereunder except for the amount of the rent for 1118 and 1119 and interest thereon.

The second appeal is allowed to the extent indicated above and the lower appellate Court''s decree will stand modified accordingly. The Appellant is entitled to his costs of the second appeal and his costs of the appeal before the lower appellate Court from the Plaintiff-Respondent who will bear his own in both these Courts. The trial Court''s direction as to costs before that Courts will stand.