KRISHNAN Vs. VELU

JUDGEMENT

(1.) This second appeal arises from an order in execution. A mortgage property was leased by the mortgagee to the mortgagors. For arrears of rent due to him and recovery of possession of the property from the lessees (i.e. mortgagors) the mortgagee brought the suit in which this second appeal has arisen. The suit was compromised, and a compromise decree was passed on 1.2.1112 in terms of the compromise petition. The compromise decree provided that, on account of the arrears, the defendants were to make three payments on specified dates, that if two of those three instalments were defaulted the plaintiff could recover possession of the property with future rent from the date of plaint to date of recovery of possession, and that if the three payments were duly made, defendants could continue to hold the property on the same terms as those provided for in the lease deed. On the default of the defendants to make the payments as per the compromise decree, the plaintiff applied for recovery of possession with future rent from date of plaint to date of recovery of possession. The defendants raised many objections to the plaintiffs application but this second appeal relates only to one of their objections. The claim to realise future rent till date of recovery of possession was allowed by the execution court. The lower appellate court also allowed that, claim subject to this limitation, viz., that since the defendants-mortgagors had already sued for redemption of the mortgage and also deposited in that suit the mortgage amount due to the mortgagee, plaintiff can realise mesne profits only from the date of the suit to the date of the deposit of the mortgage amount in the redemption suit. This second appeal is filed against the lower appellate courts order, and the point taken in it is that the plaintiff is entitled to recover future rent only from the date of plaint till the expiration of three years after the date of the decree and not till the date of the deposit of the mortgage amount which was made after the expiration of three years from the date of the decree.

(2.) The appellants contention is that the claim for mesne profits should not be allowed for the period in excess of the three years after the date of the decree. In support of this contention he relies upon O.20 R.12 of the Civil Procedure Code. It is true that by O.20 R. 12 CPC the court is given power to pass a decree for mesne profits only for the period from the date of the suit until the expiration of three years from the date of the decree. But the decree in this case was not passed under O.20 R.12 CPC but under O.23 R.3 which provides:

(3.) The appellants counsel also referred to certain decisions of the Travancore High Court which have held that the provision in a compromise decree for payment of interest at a rate more than nine per cent per year for the period after the decree is unenforceable as offending S.31 of the Travancore Civil Procedure Code and contended that the provision in the compromise decree in this case regarding payment of future rent for more than three years after the date of the decree is a similar provision offending against O.20 R. 12 CPC and should not therefore be given effect to. This argument overlooks the fact that S.31 of the Travancore Civil Procedure Code places an absolute embargo on the courts giving a decree for future interest from the date of decree at a rate higher than nine per cent per year whereas O.20 R. 12 does not contain any absolute prohibition against giving decrees for future mesne profits beyond three years from the date of decree. O.20 R.12 merely enables the court, when acting under that provision of law, to pass decrees for future mesne profits for three years and does not prohibit them, when acting under other provisions, from decreeing future mesne profits for more than three years. It is because of the absolute prohibition contained in S.31 that courts in Travancore have refused to enforce provisions in compromise decrees for payment of future interest from date of decree at rates higher than nine per cent per year. Since there is no such absolute prohibition in O.20 R.12, the power given to the court by O.23 R.3 cannot be deemed to be curtailed by O.20 R.12.