ABDUKKUTIY Vs. ABDU MANI

JUDGEMENT

(1.) The short question that tails for consideration in this Second Appeal, in execution, is whether a decree for mesne profits is a debt within the meaning of Act 11 of 1970. The courts below concurrently found it to be a debt. It is this finding that is challenged in this Second Appeal. There were other contentions before the courts below. I am not concerned with those contentions in this Second Appeal.

(2.) In execution of the decree in O. S. 304 of 1117, a property which belonged to the judgment debtor, was sold. He filed a petition to set aside the sale under S.20 of Act 11 of 1970, which enabled an agriculturist whose property was sold in execution of a decree for recovery of a debt, to apply to set aside the sale on making certain deposits. The sale took place on 9-11-1961. Delivery was taken immediately after the sale. The application was allowed by the courts below. The soundness of the reasoning in the orders passed by the courts below is challenged by the counter petitioners in E. A. 49/1971 in this Second Appeal. The appellant before me is the purchaser from the auction purchaser.

(3.) The contention that a decree for mesne profits is not a debt is based on the definition of 'debt' in S.2(4)(c) of Act 11 or 1970. This sub clause excludes from the definition of debt any "liability arising out of a breach of trust or any tortious liability". According to the counsel for the appellant, the respondent should be deemed to be in wrongful possession, and the accrual of profits in his hands is wrongful. He is liable in tort for the said amount. Such amount cannot come within the definition of 'debt', since it is expressly excluded from the definition, by the above exemption clause. The predecessor Act, Act XXXI of 1958, did not contain a similar exemption clause. The exemption Clause.2(c)(iii) read as: "any liability arising out of a breach of trust". The counsel for the appellant would therefore contend that the legislature deliberately intended to exclude tortious liability, which was more exhaustive than the exemption clause contained in Act XXXI of 1958. In the earlier Act, all that was excluded in this group, was liability arising out of a breach of trust. Basing the argument on this definition, it was contended that the authorities which interpreted the provisions of the earlier Act, could not be made applicable to the present Act.