DAMODARA NAYAK Vs. NARAYANA NAIKA 

JUDGEMENT

(1.) Question that arises for consideration in these cases is whether realization of mesne profits in a decree for recovery of possession and mesne profits is hit by Section 10 of the Kerala Scheduled Tribes (Restriction on Alienation of Land and Restoration of Alienated Lands) Act, 1975 (hereafter called the Act).

(2.) CRP. 1379 of 1997 arises out of the order in EP. 3 of 1997 in O.S. 68 of 1974 and CRP. 1354 of 1997 arises out of the order in EP. 4 of 1997 in O.S. 30 of 1974 of Subordinate Judge's Court, Kasaragode. In E.P. 3 of 1997 the decree holder seeks recovery of an amount of Rs. 21,747.97 while in EP. 4 of 1997 the amount claimed is Rs. 42,992.10. Decree holder seeks to realize the above amounts by attachment and sale of properties of the judgment debtors. Judgment debtors have already surrendered possession as per decree but did not pay the mesne profits decreed. When execution petitions were preferred for recovery of mesne profits contention was raised claiming benefit of Section 10 of the Act. Executing court took the view that mesne profits mean money and that portion of the decree is quite independent of the decree granting recovery of possession. On that reasoning executing court took the view that the immovable property of a member of a Scheduled Tribe cannot be attached or sold in execution of a decree for mesne profits. Consequently, both the execution petitions were dismissed. Aggrieved by the same these revision petitions are preferred.

(3.) Sri. K. Lakshminarayanan, counsel appearing for the revision petitioner submitted that the court below has committed an error in its reasoning that mesne profits mean money and that portion of the decree is quite independent of the decree granting possession. Counsel referred to the definition of mesne profits in Section 2(12) of the Code of Civil Procedure and submitted that decree passed for mesne profits was for return of profits wrongfully enjoyed by the judgment debtors and since profits enjoyed cannot be returned, the same is quantified in terms of money and as such the decree cannot be termed as a money decree. In support of his contention counsel referred to a decision of the Calcutta High Court in India Electric Works v. B.S. Mantosh and Ganesh Prasad Varma v. Govardhan . Counsel also referred to the decision of the Apex Court in Lucy Kochuvareed v. P. Mariappa Gounder AIR 1979 SC 1214. Reference was also made to a Division Bench judgment of this Court in Prabhakaran Filled v. Subhashani Amma 1980 KLT 777.