HIGH COURT OF KERALA
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(1.) This second appeal arises from an order in execution. A mortgage property was leased by the mortgagee to the mortgagors. For arrears of rent due to him and recovery of possession of the property from the lessees (i.e. mortgagors) the mortgagee brought the suit in which this second appeal has arisen. The suit was compromised, and a compromise decree was passed on 1.2.1112 in terms of the compromise petition. The compromise decree provided that, on account of the arrears, the defendants were to make three payments on specified dates, that if two of those three instalments were defaulted the plaintiff could recover possession of the property with future rent from the date of plaint to date of recovery of possession, and that if the three payments were duly made, defendants could continue to hold the property on the same terms as those provided for in the lease deed. On the default of the defendants to make the payments as per the compromise decree, the plaintiff applied for recovery of possession with future rent from date of plaint to date of recovery of possession. The defendants raised many objections to the plaintiffs application but this second appeal relates only to one of their objections. The claim to realise future rent till date of recovery of possession was allowed by the execution court. The lower appellate court also allowed that, claim subject to this limitation, viz., that since the defendants-mortgagors had already sued for redemption of the mortgage and also deposited in that suit the mortgage amount due to the mortgagee, plaintiff can realise mesne profits only from the date of the suit to the date of the deposit of the mortgage amount in the redemption suit. This second appeal is filed against the lower appellate courts order, and the point taken in it is that the plaintiff is entitled to recover future rent only from the date of plaint till the expiration of three years after the date of the decree and not till the date of the deposit of the mortgage amount which was made after the expiration of three years from the date of the decree.
(2.) The appellants contention is that the claim for mesne profits should not be allowed for the period in excess of the three years after the date of the decree. In support of this contention he relies upon O.20 R.12 of the Civil Procedure Code. It is true that by O.20 R. 12 CPC the court is given power to pass a decree for mesne profits only for the period from the date of the suit until the expiration of three years from the date of the decree. But the decree in this case was not passed under O.20 R.12 CPC but under O.23 R.3 which provides:
Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.
Under O.23 R.3 CPC the court is bound to pass a decree in terms of the compromise petition if the agreement embodied in the compromise petition is lawful and relates to the suit. The mere fact that under O.20 R.12 CPC the court has no power to pass a decree for mesne profits for any period beyond the expiration of three years from the date of the decree will not render an agreement by the defendant to pay mesne profits for the period beyond three years illegal or void. There is nothing unlawful or inherently illegal in an agreement by the defendant to pay mesne profits for any period beyond the expiration of three years from date of the decree. In Chitaleys Commentaries on the Code of Civil Procedure it is said that the word lawful occurring in O. 23 R. 3 CPC means lawful within the meaning of the Contract Act, that is to say, the rule requires an agreement which is legally enforceable. There is nothing in a contract to pay future rent for a period beyond three years which makes it unlawful within the meaning of the Contract Act or which renders it legally unenforceable. On the strength of the decision in Sadasivan v. Narayanan, 1945 T.L.R. 715, in which it was held that a decree for future mesne profits must be construed with reference to O.20 R.12 under which no mesne profits beyond three years could be given and that for mesne profits beyond three years the plaintiff must be referred to a separate suit, the appellants learned counsel contended that the decree in this case must be taken to have awarded future rent only for three years from the date of the decree although there is no such express limitation in the decree itself. The decree in Sadasivan v. Narayanan was not a compromise decree, and therefore, the only provision of law under which the court could pass a decree in that case was O.20 R.12 CPC Since O.20 R.12 CPC gives power to the court to pass a decree for mesne profits only for three years from the date of the decree, the court had no jurisdiction in that case to pass a decree for mesne profits beyond three years; and so it was held in that case that the decree must be construed with reference to O.20 R.12. But that is not the case here. The decree in the present case was passed under O.23 R.3 under which the court has to pass a decree in accordance with any lawful agreement arrived at by the parties in so far as it relates to the suit. In Sourendra Nath v. Tarubala, ILR 57 Calcutta 1311, the Privy Council has said that the court has a duty, not a discretion, to record a lawful compromise subject possibly to an inherent power of refusal when substantial injustice would be worked. As the agreement to pay future rent till recovery of possession, even if the date of recovery of possession was beyond three years from the date of decree, cannot be said to be illegal or void, not only had the court jurisdiction in the present case, but it was also bound, to pass a decree for mesne profits till recovery of possession of the property.
(3.) The appellants counsel also referred to certain decisions of the Travancore High Court which have held that the provision in a compromise decree for payment of interest at a rate more than nine per cent per year for the period after the decree is unenforceable as offending S.31 of the Travancore Civil Procedure Code and contended that the provision in the compromise decree in this case regarding payment of future rent for more than three years after the date of the decree is a similar provision offending against O.20 R. 12 CPC and should not therefore be given effect to. This argument overlooks the fact that S.31 of the Travancore Civil Procedure Code places an absolute embargo on the courts giving a decree for future interest from the date of decree at a rate higher than nine per cent per year whereas O.20 R. 12 does not contain any absolute prohibition against giving decrees for future mesne profits beyond three years from the date of decree. O.20 R.12 merely enables the court, when acting under that provision of law, to pass decrees for future mesne profits for three years and does not prohibit them, when acting under other provisions, from decreeing future mesne profits for more than three years. It is because of the absolute prohibition contained in S.31 that courts in Travancore have refused to enforce provisions in compromise decrees for payment of future interest from date of decree at rates higher than nine per cent per year. Since there is no such absolute prohibition in O.20 R.12, the power given to the court by O.23 R.3 cannot be deemed to be curtailed by O.20 R.12.;
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