POULO KURIYAN Vs. PEETHAMBARA MENON

JUDGEMENT

(1.) THE respondents obtained a decree for recovery of possession with mesne profits, past and future. THE final decree was of the high Court and was dated the 16th February, 1953. In due course of execution, the respondents took delivery of possession of the properties. Afterwards, on the 27th October, 1955, they presented execution petition 279 of 1955, for the realisation of mesne profits and costs and this was dismissed on the 20th february, 1956. THE present execution petition was filed also for the realisation of mesne profits and costs on the 17th February, 1960, that is, more than three years after the disposal of the earlier application. On that ground, the execution petition was contended for the appellants judgment-debtors, to be barred by limitation. THE respondents claimed exclusion of a period of six months under S. 3 of Act 3 of 1956 and of a like period of six months under S. 3 of Act 31 of 1958. THE claim of the respondents was accepted by the District Judge.

(2.) IN this appeal, it was not disputed by the appellants, that a period of six months has to be excluded under S. 3 of Act 3 of 1956. What arises for decision is, whether the respondents are not entitled to a similar exclusion under Act 31 of 1958. The relevant parts of S. 3 of that Act are as follows: "3 (1 ). "no application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act. XX X Explanation II For the purposes of this Act, a decree shall be deemed to be a decree in respect of a debt notwithstanding that other reliefs are granted in such decree: Provided that a decree for possession of land shall not be deemed to be a decree in respect of a debt by reason merely of mesne profits being also included in such decree. Explanation III Nothing in this section shall debar a decree-holder from enforcing reliefs other than in respect of a debt, where the decree contains independent reliefs. ". Under the above, the exclusion can only relate to the execution of a decree in respect of a debt. Learned counsel for the appellants argued, that although Explanation II has provided that a decree shall be deemed to be a decree in respect of a debt notwithstanding that other reliefs are granted in it, under the proviso to it, a decree for possession of land, as the present decree is stated to be, is not to be deemed to be a decree in respect of a debt merely because mesne profits are also allowed by it; in other words, the argument was, that although in the decree under execution mesne profits have been included, the decree is still a decree for possession only within the meaning of the proviso and not a decree in respect of a debt, and therefore the exclusion under S. 3 cannot be allowed. To our minds, it seems, that a decree for possession with mesne profits has to be construed for the purpose of explanation II and the proviso to it, to be a decree for possession of land and to be a decree for mesne profits. The proviso applies to a decree for possession and has been enacted to make it clear, that such a decree is not to be treated as a decree for a debt by the inclusion of mesne profits. The decree for possession is executable in spite of S. 3, while the decree for mesne profits though a part of the entire decree, being obviously not a "decree for possession" and being a decree for a debt, is not executable for the period specified in that Section. Whatever doubts may arise on the construction of the proviso are removed by the enactment of Explanation III, which provides that a decree-holder is not debarred from enforcing reliefs other than in respect of a debt, where the decree contains independent reliefs. Obviously a decree for possession and for mesne profits contains independent reliefs, namely, recovery of possession and recovery of mesne profits. According to this Explanation, the decree-holder is not debarred during the period from enforcing the relief for recovery of possession, apart from the relief for recovery of mesne profits. This is the meaning of Explanation II and the proviso, read and under stood in the light of explanation III. After all, this is a case in which possession had been recovered even before Act 3 of 1956. It is clear that the decree for mesne profits being a decree in respect of a debt, no application for execution could have been presented during the period specified in S. 3 of Act 31 of 1958.