KUMARAN PALPPAN Vs. AYYAPPAN GSWARAN AND ORS.

JUDGEMENT

(1.) THE decree -holder is the Appellant. The appeal is from an order in execution allowing an application of Defendant 4 for restitution. Defendant 4 died and his legal representatives are the Respondents. The suit was for recovery of possession of the plaint properties with mesne profits. It was originally filed in the Attingal Munsiff's Court on 29 -2 -1097 but was returned for being filed in the Trivandrum District Court. It was filed in the District Court on 16 -6 -1101. The District Court decreed the suit on 3 -8 -1104 allowing the Plaintiff to recover the properties with mesne profits at the rate of Rs. 252 chukrams 18 and cash 15 from the date of suit and costs with interest at 6 per cent per annum. The Defendants appealed from this decree and while the appeal was pending in the High Court the Plaintiff took out execution for recovery of possession of the properties and for realisation of mesne profits and costs. The properties were taken delivery of on 30 -2 -1105. Other properties belonging to the Defendants were attached for realisation of the decree amount and were sold in court action on 24 -7 -1109 and purchased by the decree -holder for 9000 fanams. According to e execution application of the decree -holder there was a balance amount of about 8000 ms yet to be realised under the decree. Mesne profits were calculated from 29 -2 -1097 the crate of the filing of the suit in the Munsiff's Court, and not from 16 -6 -1101, the date on which the suit was filed in the District Court. In the decree of the District Court it was only stated that mesne profits were allowed from the date of suit and 16 -6 -1101 was mentioned as the date of the filing of the suit. Defendant 4 filed a petition to set aside the sale on the ground of material irregularity, but as he did not comply with the order of the Court allowing him to deposit the auction amount and commission within a particular time, the application was rejected and the sale was confirmed. In the meanwhile, the appeal filed by the Defendants from the decree of the District Court was decided by the High Court on 31 -11 -1112. The High Court directed the Plaintiff to pay the Defendants the value of improvements, if any, effected by them in the suit properties which had to be determined in execution. The value of improvements payable to the Defendants was directed to be set off against the mesne profit payable to the Plaintiff. The parties were also directed to suffer their respective costs in both the Courts.

(2.) AFTER this decision of the High Court the Plaintiff applied for delivery of possession of the properties purchased by him and obtained delivery of the same on 2 -6 -1113. Subsequently, on the application of Defendant 4 a commission was issued by the execution Court to assess the value of improvements in the plaint properties. Ex. I is the report of the commissioner. According to that report, the value of improvements would come to 22577 fanams 1 chukram and 10 cash. The Plaintiff objected to the correctness of this report and the Court below found that the value of improvements due to the Defendants was only 15797 2/3 fanams. Since no amount would be found due to the Plaintiff under the decree of the High Court if the value of improvements is set off against the mesne profits Defendant 4 filed the present petition for setting aside the court sale, for recovery of possession of the properties sold in court auction with mesne profits and for the balance amount of value of improvements payable to the Defendants. The Court below found that the mesne profits due to the Plaintiff from the date of suit till the date of recovery of possession of the suit properties, namely, from 16 -6 -1101, to 30 -2 -1105, would come in 952 rupees 15 chukrams. Deducting this amount from the value of improvements due to the Defendants it was found that a sum of 1304 rupees 1 chukram was payable to the Defendants by the Plaintiff. As no amount would be payable to the Plaintiff by the Defendants if the value of improvements is set off against the mesne profits the Court below held that the court sale conducted as per the decree of the trial Court could not stand. The sale was, therefore, set aside and Defendant 4 was allowed to recover possession of the properties from the Plaintiff with mesne profits at the rate of 343 rupees 18 chukrams 3 cash from the date on which the Plaintiff took delivery of the properties. The Defendants were also allowed to recover the balance of the value of improvements due to them after setting off the mesne profits due to the Plaintiff, namely, 1304 rupees 1 chukram, with interest at 6 per cent from the date on which the Plaintiff took delivery of the suit properties. The appeal is from this order.

(3.) THE decretal portion of the judgment of the High Court is to the following effect: