VARGHESE MOHANNAN Vs. VARGHESE YATHAI
HIGH COURT OF KERALA
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(1.) This appeal is by the 1st defendant judgment debtor in execution of a decree for mesne profits and costs.
(2.) The decree dated August 18, 1954, of the Munsiff, Chengannur, is to the plaintiffs to recover the suit property from defendants 1 and 2 with mesne profits at Rs. 15 per annum from July 30, 1947 (Karkadakom 14, 1122 M. E.) until delivery of possession of the property or the expiry of 3 years from the date of the decree whichever event occurs first and six per cent interest on arrears of mesne profits. The 2nd defendant appealed against that decree to the Subordinate Judge, Mavelikara. The 1st defendant, her husband, was not made a party to that appeal (A. S. No. 302 of 1957), either as appellant or as respondent. The appeal was dismissed with costs on January 31, 1959. The plaintiffs took out execution on October 4, 1961, for recovery of the property from defendants and all costs and mesne profits from the 1st defendant personally. The property has been delivered on March 17, 1962. As the plaintiffs continued execution for mesne profits upto January 31, 1962, and for costs inclusive of that allowed by the appellate decree, the 1st defendant objected that as concerns him the decree in the case is that passed by the Munsiff, unaffected by the appeal, and that therefore mesne profits beyond August 18, 1957, and costs in appeal cannot be claimed against him. The Courts below concurred to dismiss" that objection, holding the reference to decree in O.20 R.12 CPC. to mean the appellate decree. The 1st defendant has come up in second appeal.
(3.) O.20 R.12 CPC. reads thus:
"12. Decree for possession and mesne profits
(1) Where a suit is for the recovery of possession of immovable property and for... mesne profits, the Court may pass a decree
(a) for the possession of the property;
(b) for...mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such .... mesne profits;
(c) directing an inquiry as to .... mesne profits from the institution of the suit until
(i) the delivery of possession to the decree holder,
(ii) ..................... or
(iii) the expiration of three years from the date of decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the ... mesne profits shall be passed in accordance with the result of such inquiry."
It is common ground that the Ist defendant's liability for mesne profits in this execution proceedings cannot extend beyond three years of the date of the decree. The dispute here is as to the date of the decree in this case. The 1st defendant's contention is that as regards him the decree in the suit is that passed by the Court of first instance, to which alone he was a party. The respondents decree holders contend that the decree in the suit is the appellate decree. It is conceded, and the appellate decree shows, that the 1st defendant has not been made a party thereto. It seems elementary that a decree to which a person is not a party cannot be said to be a decree against him. As the 1st defendant was no party, either as appellant or as a respondent, to the appellate decree it cannot normally be said to be a decree affecting him. If that be the correct law the 1st defendant's contention has to prevail.;
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