KOSHY Vs. KOSHY

JUDGEMENT

(1.) A.S. 80 and 81 of 1956 (K) are two appeals by defendant 6 and defendant 1 respectively, and are directed against a decree for mesne profits in favour of the plaintiff respondent. In execution of the decree in O.S. 48 of 1102 the suit properties six in number, were purchased by the additional second plaintiff in that suit on Mithunam 18, 1118, who assigned his rights to the present plaintiff. The sale was confirmed on Mithunam 11,1119, and the plaintiff was able to obtain delivery of possession of the properties only on August 27, 1951. The suit out of which this appeal arises, was instituted for mesne profits after the purchase in execution. Defendants 1 to 4, 5 who are interested in items 1 to 3, and the 6th defendant who is interested in items 4 and 5 of the suit properties resisted the suit The additional District Judge by whom the suit was tried, decreed mesne profits from March 20, 1949, that is, from a date three years prior to that of the institution of the suit, till August 27, 1951.

(2.) To me it seems, that the matter is governed wholly by S.65 of the Civil Procedure Code, according to which, the auction purchaser is to be deemed to have become the owner of the property and entitled to the right, title, and interest of the judgment debtor therein, from the date of the sale. It follows as a corollary, that he is entitled as from that date, to the profits of the property This has been held to be the law in N.S. Subramonia Iyer v. C. Lekshmana Sastri, 28 TLJ. 345, which was followed in M.P. Philip v. Asanaru Pillai Mytheen Kunju, 31 TLJ 925. In Shyam Lal v. Sundar Lal, AIR 1937 Allahabad 661 also, it was ruled that the auction purchaser is entitled to sue for mesne profits which accrued after the date of the sale and in Debi Presad v. Satish Chandra, AIR 1944 Calcutta 328, the remedy was stated to be by way of a separate suit. The decree awarding mesne profits is not open to challenge.

(3.) It was then contended for the 6th defendant, that mesne profits decreed against him at the rate of Rs. 1000 for items 4 and 5 is excessive. In the written statement and at the trial, be took the stand that the commissioners report in O.S. 48 of 1102 may be accepted as the basis and it was agreed before the Judge, that the prices of the commodities had risen very much since then. The Judge therefore relied on the report only for estimating the yield; he then ascertained the average prices of the commodities for the relevant period which was about Rs. 20 per 100 cocoanuts and Re. 1 per 100 arecanuts. He reduced this to Rs. 15/- for 100 cocoanuts and Re. 1 for 100 arecanuts, and found that even this worked out higher than what the plaintiff had claimed. There is, therefore, no point in the argument advanced before me for the first time that a further deduction of 10% ought to have been made, relying on the decision in Kanara Kurup v. Narayani Amma, 1960 KLT 642 . Such deduction from the amount computed on the basis of the above market rates for the commodities would still leave a balance higher that the claim made by the plaintiff. The case cited, related not to profits actually received, but to profits which could have been collected with due diligence and I do not feel called upon to decide whether the same rule of 10% deduction could be made applicable to the present case. I do not think that a case has been made out for reducing the amount of mesne profits.