MATHAI ABRAHAM Vs. KOSHI

JUDGEMENT

(1.) This second appeal relates to a matter in execution. The suit was for redemption of a mortgage and recovery of possession of the mortgaged property with mesne profits. The decree allowed the plaintiffs to set off the mesne profits against the mortgage amount which had been deposited by the plaintiffs in court on 12-8-1118. On 29-4-1125 the plaintiffs filed a petition claiming mesne profits and interest thereon and seeking to withdraw the amount deposited by them as mortgage amount on the ground that the mesne profits and interest there -on due to them exceeded the amount deposited by them. This petition was filed in exercise of the right of set off allowed to them by the decree. Without issuing notice on this petition to the defendants, the execution court allowed the plaintiffs application and gave them a refund of the amount on 13-3-1950 A. D. Mesne profits allowed to the plaintiffs was paddy, and in the plaintiffs application the accounts were stated converting paddy into money at the rate of Rs. 2/- per para. The amount claimed on account of mesne profits and interest was Rs. 1103 being the price of 551 paras 5 edangazhies of paddy, and the total amount due to the plaintiffs on the date of the application including mesne profits, interest and costs was shown in the application to be Rs. 1239-1-8. The mortgage amount deposited was I. Rs. 925/- corresponding to S. Rs. 941-14-8. After withdrawing the mortgage amount the plaintiffs applied for execution to realise the balance amount due to them on account of mesne profits, interest and costs. On 7-11-1955 the second defendant filed an objection petition contending that the refund was ordered without notice to him of the plaintiffs application, that plaintiffs were not entitled to get interest on mesne profits under the terms of the decree, and that the commutation price of paddy given in the plaintiffs statement of accounts was also wrong and the correct commutation price of paddy was only Rs. 1-8 as per pars. There were certain other objections also, but those have not been pressed before me at the time of hearing On the three objections mentioned above the decisions of both the courts below, i. e , the execution court and the lower appellate court, went against defendant and the plaintiffs were allowed to realise the balance amount claimed by them. Defendant 2 has therefore filed this second appeal His counsel pressed the three objections mentioned above and contended that if those objections are uphold and a correct calculation is made plaintiffs will have to be asked to redeposit in court a part of the amount already withdrawn by them from the mortgage amount and that nothing further will be due to them.

(2.) It was held in Ouseph v. Thomman ( 1954 KLT 463 ) that when the decree does not expressly award interest on mesne profits the decree holder will not be entitled to get interest on mesne profits and that the commutation rate for paddy is the nirak rate prevalent on the date the paddy became payable and not the nirak rate prevalent on the date of suit or the date of the execution application. This case was brought to the notice of both the courts below but they seem to be under the impression that the case had laid down a new law and that under the earlier law the decree holder would be entitled to get interest on mesne profits even though such interest is not expressly awarded by the decree and that the correct commutation rate for paddy is the nirak rate prevalent on the date of the execution application. A judicial decision on a question of law is not a piece of legislation but only an exposition or correct interpretation of what the law on the subject is. The fact that there was a previous judicial decision in which another view was taken does not make the view taken in the later decision a fresh piece of legislation. The later decision only says what the correct law is and amounts in effect only to a pronouncement that the earlier case was decided wrongly. Therefore, the courts below were wrong in this case in not following the decision in 1954 KLT 463 which itself has been followed in numerous other cases by this court. As the decree in this case does not expressly award to the plaintiffs interest on mesne profits, I hold, on the strength of 1954 KLT 463, that the plaintiffs are not entitled to get interest on mesne profits. Following the same decision I hold that the paddy due to the plaintiffs on account of mesne profits cannot be commuted into money at the flat rate of Rs. 2/- per para and that the paddy due to the plaintiffs for each year in respect of which mesne profits are claimed should be commuted into money at the nirak rate prevalent in that year.

(3.) So far as the question of notice of the plaintiffs previous application for refund is concerned, the finding of the execution court was that the plaintiffs had not given any notice to the defendants and that the defendants are therefore not estopped from raising the present objections to the execution court. The lower appellate court also found that the plaintiffs had not given notice to the defendants; but it took the view that the 2nd defendant had actual knowledge of the plaintiffs application and was therefore estopped from raising objections after the plaintiffs withdrew the amount from court. There is absolutely no evidence in the case to prove that defendant 2 had any notice of the plaintiffs application for refund, and so on this question I would prefer to accept the execution courts finding.