PRABHAKARAN PILLAI Vs. SUBHASHANI AMMA

JUDGEMENT

(1.) The judgment debtor, whose objection to the execution of the decree for money on the ground that he is entitled to the benefits of Act 17 of 1977 was dismissed, is the revision petitioner. The lower court denied him relief under Act 17 of 1977 only on the ground that the debt sought to be realised being arrears of mesne profits decreed, is a tortious liability exempted from the purview of Act 17 of 1977. This is challenged in this revision petition.

(2.) The decree is one for recovery of property with mesne profits on the basis of a trespass. The decree schedule property is a narrow strip of land and according to the defendant judgment debtor there was a bona fide dispute as regards the right over this narrow strip of land and though ultimately the plaintiff succeeded in establishing his title over the land, the liability for mesne profits cannot be said to be in the nature of a tortious liability and hence the debt is not one exempted from the purview of the Act. According to the decree holder when the title to the property is found to be with him the possession of the property by the defendant is a wrongful possession of the property of another person and every wrongful possession would amount to a civil wrong and the recovery of the property with mesne profits is equivalent to awarding of damages for the period during which the wrongful possession was in force. It will be useful at this stage to notice the relevant provisions of the Act S.2 Clause (3)(c) reads as follows:

(3.) Where the defendant wrongfully deprives the plaintiff of his land, the plaintiff will generally wish to recover not the value of the land, but the land itself. The principal action is therefore an action for the recovery of the land historically better known as the action for ejectment. Damages will thus generally be limited to the loss arising from the period of wrongful occupation by the defendant. Such damages are recoverable in an action for mesne profits and the normal measure of damages is the market rental value of the property occupied or used for the period of the wrongful occupation or user. This measure is consonant with the name of the action for wrongful occupation as one for mesne profits. The expression "mesne" means intermediate; middle. The definition given in the CPC therefore correctly represents the principle behind the award of mesne profits. A person in wrongful possession is made liable for the profit actually received or might with ordinary diligence have received therefrom. This measure is, as said earlier, different from the measure in the case of other tortious liability, but that does not affect the principle on which a person is made liable for mesne profits for trespass on another's land. That remains the same, namely, a tortious liability. We are supported in this conclusion by the decision of the Privy Council in Girish Chundar Lahiri v. Shoshi Shikhareswar Roy (ILR 27 Calcutta 951). At page 967 Lord Hobhouse states thus:-