KANARA KURUP Vs. NARAYANI AMMA

JUDGEMENT

(1.) THE appellant was the auction-purchaser of the property concerned at the sale held in execution of the decree in O. S. No. 130 of 1934 of the court of the District Munsiff of Payyoli. In O. S. No. 849 of 1943 the District Munsiff of Nadapuram set aside the decree and sale in O. S. No. 130 of 1934. THE decree holder and the auction-purchaser in O. S. No. 130 of 1934 were parties to the decree in O. S. No. 849 of 1943.

(2.) BOTH of them appealed against that decree to the subordinate Judge of Tellicherry. The appeal of the decree holder was dismissed and the appeal of the auction-purchaser was allowed. By the judgment in the second Appeals Nos. 1441 and 2551 of 1947, the High Court of Madras restored the judgment of the trial court.

(3.) THE first submission before us is that as a result of the opposition of the plaintiff in O. S. No. 849 of 1943 the appellant was able to get possession of the property only on 19-10-1946 though the sale was on 1942 and its confirmation on 11-2-1943 and that he should not be made liable for mesne profits for any period prior to 19-10-1946. We are satisfied that this contention is well-founded and that no mesne profits should be awarded for any period anterior to 19-10-1946. This is not a case where mesne profits are awarded on the ground that profits were actually received but only on the ground that the appellant with ordinary diligence could have received them from the tenants of the property.