AVUDAYAPPAN CHETTIAR Vs. KANTHIMATHI AMMAL

JUDGEMENT

(1.) THIS is an appeal by the third defendant in O. S. No. 322 of 1953 against the order of the District Judge, Tirunelveli, in C. M. A. 92 of 1961, directing execution against the third defendant for mesne profits.

(2.) THE properties in dispute originally belonged to one Isakki Perumal. He left a will dated 16-2-1930 by which he gave a life estate in the suit properties to his wife and the remainder to a trust. The widow executed a settlement in favour of the first defendant and another, by deed dated 16-9-1944. The first defendant sold items 1, 2 and 3 to the second defendant on 18-2-1952. The second defendant sold some of the properties to the sixth defendant. The third defendant, who is the appellant herein purchased 85 trees from the second defendant. The trees were on items 1, 2 and 3. Defendants 4 and 5 are the lessees of items 1 to

(3.) THE (Madalayam) trust filed the suit, O. S. 322 of 1953, for recovery of the items of property which Isakki Perumal bequeathed to it by will dated 16-9-1930. The suit was contested by defendants 1, 2 and 6. A decree as prayed for by the plaintiff was passed on 31-1-1955, and an appeal by defendants 1, 2 and 6. A. S. 11 of 1956, was dismissed on 22-2-1956. The decree-holder filed several execution petitions. It is unnecessary to refer to the various execution petitions filed. In E. P. 11 of 1961, the decree-holder sought to recover a sum of Rs. 533 as mesne profits, and Rs. 264 as costs. The third defendant objected on the ground that he was liable to pay mesne profits in respect of item 4, that is, for the 85 trees that were found on the land at Rs. 10 per annum, that he paid a sum of Rs. 179-12-6 towards costs on 23-8-1955, and he cannot be proceeded against except for realising Rs. 20 which will be the mesne profits for item 4 between the date of the plaint 3-12-1953 and the date of execution. It was held by both the Courts that the decree that was passed in O. S. 322 of 1953 was a joint and several one and that the decree-holder is entitled to realise the entire mesne profits from any one of the defendants. This appeal is preferred against the order dismissing the petition of the third defendant. It may also be mentioned that the third defendant filed I. A. 669 of 1961 for amending the decree in O. S. 322 of 1953 to make it clear that the third defendant was liable only regarding mesne profits for item 4. This petition was dismissed. The decree that is sought to be executed is in the following terms.