THIMMIAH Vs. NANJAPPA AND

JUDGEMENT

(1.) The suit in respect of which this appeal arises was for redemption of a mortgage and was filed by the sons of the deceased mortgagor. The plaintiffs claimed to be agriculturists under the Agriculturists Relief Act. It was contended that if accounts were taken under the said Act, the mortgage debt would be found to have been discharged and they would be entitled to be put in possession of the property mortgaged. They claimed mesne profits from the date of suit.

(2.) Both the Courts below have concurred in holding that the debt has been wiped out, on taking accounts under Section 8, Agriculturists Belief Act, and as the debt was found discharged the suit for redemption was decreed. The learned Munsiff, however, allowed mesne profits from date of suit. But, on appeal, the learned Subordinate Judge held that the plaintiffs are not entitled to mesne profits from the date of suit. The plaintiffs have come up in appeal and contend that they are entitled to mesne profits from date of suit. A plaintiff is entitled to mesne profits only from a defendant who is in wrongful possession of his property. It has to be stated that the mortgagee in this case was not in wrongful possession of the property till the relationship of mortgagor and mortgagee was put an end to under the decree of the Court. Under the terms of the contract, the mortgage was subsisting and it is not possible to award mesne profits till it can be said that the defendant is in wrongful possession.

(3.) The Mysore Agriculturists Relief Act is intended to give relief to the agriculturists from indebtedness. It is not to get them any money which they have paid as per the terms of a contract but has been found to be in excess of what had to be paid on calculations being made under the Agriculturists Relief Act. Whatever may be the case with the Deccan Agriculturists Relief Act, Clause (3) of Section 8, Mysore Agriculturists Relief Act, which deals with the power of the Court to enquire into the history of transactions between the parties clearly states : "Nothing contained in this section shall be deemed to empower the Court as the result of an investigation hereunder to grant relief by way of refund to an agriculturist, whether as plaintiff or as defendant, of any amount to which he is not otherwise entitled under any law for the time in force." Section 11 (1) no doubt states that the Court may, in its discretion, in passing a decree for the Act direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, on such dates and on such terms as to the payment of interest, and where the mortgagee is in possession as to the appropriation of the profits and accounting therefor, as it thinks fit. The accounting could only be in the manner referred to in Section 8 of the said Act and it is made clear by Sub-section (3) that no refund of any money realised by the mortgagee under the terms of the contract is to be made.