IMALA Vs. RAMACHANDRAN NAIR

JUDGEMENT

(1.) The decree for redemption and possession was passed on 12-6-1956 on the footing that the transaction under which the appellants judgment - debtors (defendants 1 and 2 in the suit) held was a possessory mortgage pure and simple and delivery in execution of the decree was ordered in 1957 after Kerala Act 1 of 1957 came into force. The decree grants mesne profits, and the courts below were right in holding that it was too late in the day for the appellants to contend that they were tenants, that the land an their hands was a holding as defined by the Malabar Tenancy Act, and therefore a holding within the meaning of Kerala Act 1 of 1957, and that therefore recovery of mesne profits in execution of the decree was stayed under S.4 of Act 1 of 1957.

(2.) The first court, however, dismissed the respondent decree holders execution application on the score that it was brought within six months from the commencement of Kerala Act 31 of 1958 and was therefore barred under S.3 of that Act. But, as rightly pointed out by the lower appellate court, in doing so, it lost sight of the proviso to explanation II to S.3 which I agree with the lower appellate court must be construed to mean that when a decree for possession awards also mesne profits, the decree in its entirety is not to be regarded as a decree in respect of a debt merely on the ground, which is the only ground raised here, that mesne profits, which can also be a debt under the Act, are awarded by the decree. The lower appellate court was therefore right in setting aside the order of dismissal. Whether the appellants are entitled to the benefits of S.4 of Act 31 of 1958 is a matter on which neither court has pronounced and is one which will doubtless come up for decision hereafter.

(3.) I dismiss the appeal with costs.