NACHIAPPAN Vs. P R MUTHIAH AMBALAM

JUDGEMENT

(1.) THIS appeal by the plaintiff's is directed only against the denial of mesne profits for part of the period for which they were claimed. The following facts are not in dispute. The plaintiff's purchased the equity of redemption from the mortgagors. In O. P. 39 of 1948, under S. 83 of the Transfer of Property Act, they made the deposit of the mortgage amount of Rs. 630 on 12-8-1948. Presumably, on the refusal of the mortgagee to receive the amount, that petition was dismissed on 12-11-1948. But the mortgage amount continued to be in deposit in court. Thereafter, in 1949, they filed a suit for redemption. A preliminary decree was passed therein in 1951. Subsequent thereto, the plaintiffs deposited the mortgage amount to the credit of the suit on 25-3-1952. The final disposal of that redemption. The final disposal of that redemption suit was only in 1958, for, against the preliminary decree, there was an appeal and a further appeal which resulted in a remand, after which it was disposed of. The plaintiff's obtained possession of the property on 17-7-1958. In the suit itself, the mesne profits for fasli 1358 had been given. The plaintiff's filed an interlocutory application under or. XX, Rule 12 and Or. XXXIV, Rule 7 C. P. C. for ascertainment of the mesne profits for faslis 1359 to 1367. The learned District Munsif held that the plaintiff's would be entitled to mesne profits earlier than the date on which they deposited the mortgage amount in pursuance of the preliminary decree, which deposit was on 25-3-1952. Mesne profits were accordingly granted only for faslis 1362 to 1367. On the quantum of mesne profits, the learned District Munsif found that the plaintiff's were entitled to a total amount of Rs. 1500 for the period in question.

(2.) AGAINST this decision, appeals were taken by both sides. The plea of the plaintiff's that they were entitled to mesne profits for the earlier faslis were again negatived. On the quantum, in respect of which the defendants had also appealed the learned Subordinate Judge held that a total amount of Rs. 1024 alone would represent the mesne profits for the period in question.

(3.) THE plaintiff's appeal and the short question that has been canvassed in this second appeal is that since the plaintiff's as the petitioners in the proceedings under S. 83 of the Transfer of Property Act had made the deposit on 12-8-1948, they would be entitled to mesne profits from that date. The question then is, are they entitled to mesne profits from 1948, when they made the deposit in those proceedings, or only from 1952, when they made the deposit in pursuance of the preliminary decree? On behalf of the defendants, a memorandum of cross objections has also been filed objecting to the quantum of mesne profits awarded by the lower appellate court. Equally, the appellants object to the reduction of the quantum of mesne profits by the lower appellate court.