ALAVI Vs. MOHAMMED

JUDGEMENT

(1.) The short question that arises for consideration in this execution second appeal is whether the execution for costs decreed in a suit for recovery of possession and permanent injunction is hit by the Kerala Debtors (Temporary Relief) Act 30 of 1975, for short the Act. The judgment debtor in O. S. No. 322 of 1973 is the appellant. The above suit was decreed with costs on 3-2-1974. The respondent decree holder filed E. P. 205 of 1975 on 25/6/1975. Kerala Act 30 of 1975 came into force on 14-10-1975. The execution court held that the costs sought to be realised in execution is a debt as defined by Act 30 of 1975 and dismissed the execution petition 'for the time being' holding 'the Act as applicable to the debt'. From this order of the execution court the decree holder appealed to the court below. The court below held that the costs allowed in a suit or decree for possession of land should also stand the same footing as mesne profits as the direction to pay costs is only accessory to the main relief just as the mesne profits decreed in such a suit. Accordingly the court below set aside the order appealed against and directed the execution court to take the execution petition on file and proceed with the same. The judgment debtor has come up in this second appeal against the judgment of the court below.

(2.) S.2(4) of the Act reads:

(3.) In the result, the execution second appeal is dismissed. No costs.