MOHAMED ROWTHER Vs. VELAYUDHAN

JUDGEMENT

(1.) The matter arises in execution of a decree which the appellant in second appeal had obtained against the respondent for recovery of possession of property with mesne profits. The decree provided that the appellant do recover possession with mesne profits at the rate of Rs. 5/- per mensem from the 1st Chingom, 1125, till the date of deposit by him of the value of improvements and thereafter at the rate of Rs. 10/- per mensem. Clearly, the decree failed to fix the limit of time up to which mesne profits were realisable by the appellant.

(2.) The relevant part of O.20 R.12 reads as follows:

(3.) In this court learned counsel for the appellant contended for the application of the principle, that the execution court is not competent to go behind the terms of the decree, and relied in support of it, on Chittorui Subbanna v. Kudapa Subbanna (AIR 1959 Andhra Pradesh 607) and Palai Central Bank Ltd. v. C. Ramaswami Nadar ( 1959 KLT 1 = 1959 KLJ 20). The respondent's learned counsel was prepared to contend for the position, that even if the award of mesne profits by the decree is in contravention of O.20 R.12 the execution court can decline to order the realisation of the excess mesne profits. I do not think I am called upon to decide this point for the purpose of this appeal, for, as observed, this is a case where no limit of time has been set by the decree up to which alone mesne profits could be realised. For this reason too, the principle that the execution court is not competent to go behind the decree is in no way attracted. To me it appears, that the question in the present case is only one of construction of the decree, as to what the court really intended to do or might be deemed to have done at the time of passing the decree. The court must have intended to conform to the law as enacted in O.20 R.12. The principle is stated thus, in Uttamram v. Kishordas (ILR 24 Bombay 149):