THULASI AMMAL Vs. VEDAVYASACHARIAR

JUDGEMENT

(1.) The appellant obtained a decree on 10 November, 1921, in O.S. No. 850 of 1919 on the file of the District Munsiff of Periakulam. The matter was carried in appeal and in second appeal and then again in Letters Patent Appeal. In each Court the appeal was dismissed, the date of the decree in the Letters Patent Appeal being 15 September, 1932. The first Court decreed the suit for possession and future mesne profits for three years from the date of plaint to the date of delivery of possession or until the expiry of three years from the date of decree, whichever event was earlier. The petitioner put in the present application on 19 June, 1942, praying for the attachment and sale of certain immoveable property, for recovery of mesne profits up to 1927, in which year the appellant obtained possession of the suit property, for the costs awarded in the Letters Patent Appeal, and for interest on mesne profits. Both the trial Court and the lower appellate Court he d that the application was barred by virtue of Section 48 of the Civil P. C. ; because the date of the present application was more than twelve years from the date of the first Court's decree. They further held that even if the claim had not been totally barred by virtue of Section 48 of the Code, mesne profits could have been granted only up to 1924, as the Court had awarded mesne profits only for three years from the date of the decree. Nevertheless, both the Courts agreed that the appellant was entitled to execute for the costs of the Letters Patent Appeal.

(2.) The decisions of the Courts below are based on Nagalinga Chetti V/s. Srinivasa Aiyangar . This case was however considered, together with a number of Privy Council decisions bearing on the same point in Nacharammal V/s. Veerappa Chettiar : and it was held that since the decree to be executed was the decree of the appellate Court, the appellant was entitled to execute his decree, since the application had been filed within twelve years of the decree in the Letters Patent Appeal. Applying that decision to the facts of this case, the application of the appellant was in time.

(3.) With regard to mesne profits, since the decree to be executed was the decree of this Court in Letters Patent Appeal, the appellant was entitled to mesne profits up to three years of the passing of the decree of this Court or up to the date on which he obtained possession, whichever was the earlier. That would mean that he was entitled to mesne profits from the date of plaint up to 1927, when delivery was given to him. It was so held in Bhup Indar Bahadur Singh V/s. Bijai Bahadur Singh (1900) 10 M.L.J. 290 : L.R. 27 I.A. 209 I.L.R. 23 All. 152 (P.C.) a decision of the Privy Council.