SUBBAYIA PILLAI Vs. BHAGAVATHI AMMA

JUDGEMENT

(1.) This Second Appeal arises from an order passed by the Additional District Munsiff of Nagercoil on C.M.P. 2261/1118 filed by the legal representatives of the deceased judgment debt in O.S. No. 310 of 1111 seeking to get a refund of the excess amount alleged to have been collected by the decree holder. The Munsiff upheld the claim. However, on appeal by the decree holder (A.S. No. 219/1119) the Temporary second Judge of Nagercoil instead of granting any relief to him modified the order of the Munsiff somewhat to his detriment. Hence this second appeal by him.

(2.) Under the decree in O.S. No. 310 of 1111 the decree holder was entitled to recover possession of the decree schedule property with mesne profits, both past and future, at the rate of 4 1/2 kottas of paddy a year. The price of paddy had not been fixed in the decree. The complaint of the petitioner is that in realising the decree debt value of paddy had been claimed at an excessive rate by the decree holder. Hence their application for refund.

(3.) The controversy between the parties centres round two questions, viz., (1) what exactly is the nirak rate-or market rate to be adopted for fixing the money equivalent of the paddy recoverable by way of mesne profits or in other words the rate prevailing on which date is to be accepted; and (2) which of the several execution applications filed by the decree holder is to be treated as his first execution application for recovering the debt.