KUNJU ALI Vs. MOHAMMADU

JUDGEMENT

(1.) This is an appeal filed by the first defendant judgment debtor against an order passed by the learned District Munsiff of Vaikom in execution proceedings, dated 3.7.1124. The only point urged on behalf of the appellant in the appeal is that the lower court should have reduced the interest on the mesne profits to 6 per cent for the period between 23.5.1112 and 31.1.1116 and to 4 per cent from 31.1.1116.

(2.) The suit was in ejectment claiming mesne profits. The Munsiff before whom the suit was filed dismissed the suit by decree dated 30.2.1115. The plaintiff appealed to the High Court of Travancore and the High Court in A.S. No. 627 of 1115 allowed the appeal and decreed the suit with mesne profits from the year 1102 and interest on each years mesne profits at 9 per cent. That decree was dated 31.12.1120. In the course of the execution proceedings of this decree the first defendant appellant raised the contention which he urges before us in appeal. The question is whether the appellant is entitled to raise the question in execution proceedings not having raised it during the course of the suit and appeal. The appellant contends that the award of interest is a matter relating to jurisdiction and that therefore, the question can be considered in execution and relies upon two decisions namely, 34 TLJ 809 and 1950 KLT 53 .

(3.) The claim being one for mesne profits it sounds in damages and can be said to have been incurred only when the court fixes the liability and passes a decree therefor. As already mentioned, the High Court passed the decree only on 31.12.1120. S. 3 of the Travancore Debt Relief Act, Act II 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 appellant of the decree holders properties existed before the date mentioned in the said section the liability itself can be said to have been incurred only when the court fixed it by its decree. A similar question arose under the provisions of the Cochin Agriculturists Relief Act in Vasudevan Namboodiri v. Mundoor Church (1121 Cochin 166) where K.S. Kirshnaswami Iyengar, C.J. sitting with V.K. Krishna Menon, J. held that the word incurred can be interpreted as meaning made payable. On that view also with which we respectfully agree, the liability for mesne profits in this case was incurred within the meaning of S. 3 of Act II of 1116 only on 31.12.1120. If so, the Debt Relief Act will not apply to the case and the reduction that is provided for by the Act will not be available for the appellant.