AYYAN KRISHNAN Vs. KUNJIKUTTY AMMA LEKSHMIKUTTY AMMA

JUDGEMENT

(1.) The second appeal arises from a redemption suit. The appellant was impleaded as a respondent before the lower appellate court and in second appeal his counsel has urged before us three points, namely, (i) the lower appellate court went wrong in allowing redemption when both that court and the Trial Court had found that the suit was brought prematurely; (ii) that the lower appellate courtss order regarding mesne profits is wrong and (iii) the order as to costs is also wrong.

(2.) The suit giving rise to the second appeal was brought in 1119 but the courts below have concurrently found that the mortgagee was entitled to remain in possession till 1.7.1127, that is, 12 years from the date they paid renewal fee to the jenmi. The period, however, expired while the appeal was pending before the lower appellate court and that court therefore permitted redemption in reversal of the Trial Courts decree refusing redemption. Learned counsel for the appellant stated that it was improper on the part of the lower appellate court to have done that. Every other contention of the mortgagee to resist the claim for redemption was repelled by both the courts and in a case where no injustice would result by granting a decree on the basis of a cause of action that arose during the pendency of the appeal we fail to see how the lower appellate court went wrong in exercising its discretion to take notice to that subsequent event as pass a decree. To quote Mukherjea, J. (as he then was) from AIR 1946 Calcutta 118 at 120 Undoubtedly the appellate Court is entitled to look into subsequent events for the purpose of doing complete justice to the parties and in particular, for avoiding further litigation. We are therefore of the view that the lower appellate court is not wrong in having allowed redemption without driving the plaintiff to a fresh suit in that behalf. The first point urged in the second appeal therefore fails.

(3.) The lower appellate court has allowed the plaintiff to realise mesne profits from the date of the suit. This is clearly wrong especially when the cause of action arose during the pendency of the appeal before that court. The respondents counsel urged that his client was entitled to mesne profits at least from the date of the expiration of the 12 years from 1.7.1115, but we cannot agree to that either. Notwithstanding the expiration of the period the lower appellate court could have dismissed the appeal confirming the lower courts decree refusing to grant redemption. Admittedly all the amounts due to the defendants had been paid into the Trial Court. The property constitutes paddy lands and no question of any improvements arose. In our opinion, the proper date from which the plaintiff can be held to be entitled to recover mense profits from the defendants will be the date on which the lower appellate court passed its decree, namely, 29.9.1952. The decree for mesne profits passed by the lower appellate court will therefore stand modified accordingly.