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Judgment
Subramania Iyer, J.—This is an appeal filed by deft. 1 judgment-debtor against an order passed by the learned Diet. Munsiff of Vaikom in execution proceedings dated 3-7-1124. The only point urged on behalf of the applt. in the appeal is that the lower Ct. should have reduced the interest on the mesne profits to 6 per cent, for the period between 23-5-1112 & 31-1-1116 & to 4 percent, from 31-1-1116.
The suit was for ejectment claiming mesne profits. The Munsiff before whom the suit was filed dismissed the suit by decree dated 30-2-1115. The pltf. appealed to the H.C. of Travancore & the H.C. in A. S. No. 627 of 1115 allowed the appeal & decreed the suit with mesne profits from the year 1102 & interest on each year''s mesne profits at 9 percent. That decree was dated 31-12-1120. In the course of the execution proceedings of this decree deft, applt. 1 raised the contention which he urges before us in appeal. The question is whether the applt. is entitled to raise the question in execution proceedings, not having raised it during the course of the suit & appeal. The applt. contends that the award of interest is a matter relating to jurisdiction & therefore the question can be considered in execution & replies upon two decisions, namely,Gopal Iyer v. Pitcha Pillay 1950 K. L. T.53 : 34 T. L. J. 809.
The claim being one for mesne profits it sounds in damages & can be said to have been incurred only when the Ct. fixes the liability & passes a decree therefor. As mentioned already, the H.C. passed the decree only on 31-12-1120. Section 3, Travancore Debt Relief Act, Act II [2] of 1116, applies only to debts incurred'' before the 23rd of Dhanu 1112. Though the ground of the liability for mesne profits, namely, wrongful possession by the applt, of the decree-holder''s properties, existed before the date mentioned in the said section, the liability itself can be said to have been incurred only when the Ct. fixed it by its decree. A similar question arose under the provisions of the Cochin Agriculturists'' Relief Act in Vasudevan Namoodiri v. Mundoor Church 1121 KER 166 where K.S. Krishnaswami Iyengar C.J., sitting with V.K. Krishna Menon, J. held that the word ''incurred'' can be interpreted as meaning ''made payable''. On view also with which we respectfully agree, the Liability for mesne profits in this case was ''incurred'' within the meaning of Section 3 of Act II [2] of 1116 only on 31-13-1120. If so, the Debt Relief Act will not apply to the case & the reduction that is provided for by the Act will not be available for the applt.
(SIC)the view that we take it is not necessary to consider the correctness of the view taken in Gopala Krishna v. Pitcha Pillai 1950 K. L. T. 53 : 34 T. L. J. 809 about which we entertain serious doubts.
The result is the appeal fails & is dismissed with costs.