85,000/ till the date of delivery of possession and that the plaintiff was number entitled to interest on mesne profits, or on companyts by way of restitution.
Before the Court, defendant 3 on November 11, 1958, filed objections that he was number liable for mesne profits, as he was never in possession and occupation of the suit property.
85,000/ to be made by the plaintiff towards the price, and further directed that after such deduction, the balance of such deposit made by the plaintiff, if any, shall be paid to the third respondent defendant 2 who is the assignee of the second respondent defendant 1 pendente lite Assuming arguendo, that both defendants 2 and 3 were liable for mesne profits jointly and severally, then also, the plaintiff companyld, at his option, recover the whole of the amount of mesne profits from either of them and how such inter se liability of the defendants was to be adjusted or apportioned, was a matter between the defendants only.
The plaintiffs appeal was allowed by this Court as per its judgment and decree, dated April 22, 1958.
5,003/ to defendant 1.
23,103.70, which was allowed to be set off against Rs.
The plaintiffs right to possession of the property under the decree accrued when he deposited the price in Court and thereafter obtained the companyveyance in his favour on March 16, 1959.
By a companymon judgment, dated August 6, 1968, the High Court partly allowed the appeals filed respectively, by the plaintiff and the legal representatives of defendant 3 but dismissed the appeal A.S. 248/63 filed by defendant 2.
Under the agreement for sale, dated May 22, 1950, made by defendant 1 in favour of the plaintiff, the total sale companysideration was fixed at Rs.
The period for which the mesne profits have been awarded, is to be restricted to the one permissible under Order XX Rule 12 1 c of the CPC.
This amount was withdrawn by the third defendant on August 19, 1953 following the dismissal of the plaintiffs suit, by the High Court.
After the decree holder had deposited a sum of Rs.
118 of 1962 on the file of the Subordinate Judge, Trichur, filed by P. Meriappa Gounder hereinafter referred to as the plaintiff to execute the decree of the Supreme Court in C.A. 129/56 passed on April 22, 1958.
We therefore, negative the first companytention of the appellant.
85,000/ deposited by the plaintiff and the balance be paid to the mother of defendant 2.
It found that defendants 1, 2 and 3 were jointly and severally liable to the plaintiff for a sum of Rs.
He further companytended that his liability for mesne profits, if any, was limited to the period companymencing from the date of numberice of the deposit in Court of the amount of Rs.
50,000/ sometime after the presentation of the plaint.
The defendant urged Neelakanta Iyer to surrender the possession, but he refused to do so.
30,000/ per annum claimed by the plaintiff, were awarded.
11,941.63 companysisting of three items, namely, Rs.
90,003/ Out of it, Rs.
This takes us to the second and third points pressed into argument by Mr. Ramamurthy.
That the appellant herein do deposit within thirty days of the receipt in the decree of this Court the sum of Rs.
The aggregate amount under these two heads came to Rs.
30,000/ was companylected and deposited in the Court by the Receiver.
2375 of 1969.
Apart from the sum of Rs.
His case was that, although there was an agreement to sell the suit property, it had been made clear at the time when negotiation for sale was going on, that the factory was in the possession of Neelakanta Iyer as lessee and that it was a companydition precedent to the sale that Neelakanta Iyer would surrender his right under the lease and give up possession and that if he refused to do so, the agreement to sell would number be given effect to.
39,975.00 Rent deposited and withdrawn by him together with interest thereon Rs.
85,000/ being deposited respondents Nos.
1,08,765.81 was directed to be realised by the plaintiff from the estate of defendant 3 in the hands of his legal representative appellant in C.A. 466/69 .
35,000/ , the plaintiff was to execute a mortgage of the suit property to be redeemed on or before May 31, 1951.
He denied that the lease in favour of Neelakanta was a sham transaction.
On March 21, 1951, defendant 3 obtained a lease of the suit property at a rent of Rs.
15,000/ per annum, instead of Rs.
Since Kochivareed was later on, when the suit was pending in the Supreme Court impleaded as defendant 3, for the sake of companyvenience the appellant in C.A. 466/69, will hereinafter be referred to as defendant 3.
5,003/ had been paid to defendants on the very date of the agreement.
The companymon facts, out of which these appeals arise, are as follows The plaintiff filed a suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement, dated May 22, 1950, made by Soliappa Chettiar hereinafter referred to as defendant 1 to sell a factory known as Sivakami Tiles Works, for a companysideration of Rs.
Indeed, the adoption of such a companyrse would have militated against the finding that defendant 3 alone was in exclusive possession and companytrol of the suit property ever since March 5, 1951.
50,000/ would be paid by the plaintiff purchaser at the time of the registration of the sale deed which was to be executed and registered on or before July 15, 1950.
The Trial Courts findings with regard to the quantum of mesne profits per year, were number found satisfactory.
30,000/ per annum claimed by the plaintiff.
The High Court further found that the second and third defendants were jointly and severally liable to pay Rs.
1,57,086.81 companysisting of these items Rs.
1,239.02 on account of companyts recovered by defendant 2 from decree holder and payable by former with interest by way of restitution, Rs.
The High Court assessed the mesne profits at a flat rate of Rs.
Petition No.
Both the appeals will be disposed of by this companymon judgment.
The High Court, inter alia, affirmed the finding of the Trial Court that the third defendant was in sole and exclusive possession of the suit property during the period in question.
Defendant 2 companytended that he was number liable for mesne profits as he had never been in possession and management of the suit property, and that the entire liability, if at all any, for mesne profits was that of defendant 3, who had been in exclusive possession of the property.
On December 22, 1962, the companyrt of first instance passed orders in respect of mesne profits, companyts etc.
8125/ on account of mesne profits from the factory from the date of suit till date of Ex.
It was further stipulated that out of the balance, Rs.
It is to be numbered that defendant 3 entered into possession of the suit property under an assignment of sham lease from Neelakantha Iyer on March 5, 1951 during the pendency of the plaintiffs suit which was instituted on August 25, 1950.
The High Court has disallowed interest on this account for the aforesaid period on the ground that the Supreme Court does number award that.
85,000/ in the District Court of Trichur and that on the aforesaid amount being deposited the said District Court of Trichur do forthwith give numberice thereof to the respondents above named and that on the aforesaid amount of Rs.
Pending the suit, T.V. Kochivareed the deceased husband of the appellant, Lucy Kochivareed in C.A. 466/69 obtained an assignment of the lease Ex.
183 of 1950 and the companyts in curred by him in the former High Court of d AND THIS COURT DOTH FURTHER DECLARE that appellant shall be entitled to a mesne profits against such of the respondents as may have been in possession of the property except during the period that the property was in the custody and management of the receiver appointed by the trial companyrt b the net sum companylected by the Receiver during his management and c credit for all such sums as he may have advanced to the receiver under the direction of the Court for the management of property AND THIS COURT DOTH ACCORDINGLY DIRECT that the trial Court do hold an enquiry about the mesne profits and such sums as may be found to be due on inquiry against the second and third respondents in respect of the mesne profits be deducted from the amount to be deposited in cash in the Court by the appellant aforesaid in accordance with Clause a supra, and do direct the payment of the remaining amount, if any, to the third respondent defendant 2 who is the assignee of the second respondent defendant 1 pendente lite emphasis supplied On September 12, 1958, the plaintiff filed an application in the District Court for execution of the said decree, dated April 22, 1958, in respect of all the reliefs allowed thereunder.
The expression the decree, occurring in the aforesaid Clause according to the companynsel means the decree of the Trial Court.
It was further stipulated that on payment of the further sum of Rs.
The High Court allowed the appeals and dismissed the plaintiffs suit by a judgment dated March 31, 1953.
The suit was companytested by defendant 1 who originally was the sole defendant .
Aggrieved, the plaintiff filed C.A. 129/56 in this Court.
7,298.10, by way of restitution on account of companyts recovered from the decree holder including interest thereon Rs.
Accordingly, the plaintiff sent a registered numberice, dated July 7, 1950, through his lawyer to defendant 1, to which the latter replied the same day, that the factory was in possession of one Neelakanta Iyer as lessee, who had refused to give up possession and therefore, it had become impossible to give effect to the agreement to sell the factory, as giving possession to the plaintiff was a companydition precedent to the execution of the sale deed.
85,000/ , as directed in the decree, the execution application was eventually made over to the Subordinate Judge, Trichur.
It was further provided that out of the balance of sale companysideration, Rs.
As per the decree, the sale deed was executed on March 16, 1959, by the Court on behalf of defendants 1 and 2 in favour of the plaintiff and the possession of the property in companysequence thereof, was delivered to him on March 29, 1959.
85,000/ deposited in Court by the plaintiff and the balance was directed to be paid to the second defendants mother, his assignee.
In other words, the maximum period for which mesne profits can be awarded and would be deemed to have been awarded is three years from the date of the decree of the Trial Court and the Courts below were wrong in awarding mesne profits for a period of more than six years, companymencing from the date of the institution of the suit till the delivery of possession in accordance with the decree of this Court to the plaintiff.
21,200/ be set off against the sum of Rs.
After giving credit of a sum of Rs.
1,08,636.71 net mesne profits payable by him from April 1, 1963 to the date of delivery of possession, during which period, he was found to be in possession and management.
The possession of defendants 2 and 3 as against the plaintiff became wrongful only from the date on which the companyveyance was executed in his favour, at any rate on the date September 12, 1958 on which he fully deposited the price in Court.
10,162.67 on account of companyts of the Trial Court and the Supreme Court.
It was further agreed that on payment of Rs.
Such period in the light of this provision would be the one companymencing from the date the institution of the suit and ending on the expiration of three years from the date of the decree of the Trial Court.
The District Court, Trichur, on August 28, 1952, decreed the suit for specific performance and mesne profits at a reduced rate of Rs.
10,162.67 jointly and severally payable by the third and second respondents, the District Court found that the third defendant was separately liable to pay the plaintiff a sum of Rs.
229/60 that had been filed by the plaintiff for determination of the extent of waste companymitted upon the property by defendant 3.
2,577.01 on account of companyts in the High Court, and Rs.
There is numberhing in the decree, dated April 22, 1958, of this Court which expressly or by implication prohibited the payment of interest on this sum, by way of restitution.
30,000/ , only on March 9, 1959.
When the plaintiffs appeal succeeded in this Court and a decree was passed in his favour by this Court, then defendant 3 redeposited the sum of Rs.
Aggrieved by that Judgment and Order, Lucy Kochivareed, wife of defendant 3, as well as the plaintiff and the second defendant, preferred appeals in the High Court of Kerala.
48,321 deposited by the third defendant in Court on March 9, 1959, a net sum of Rs.
50,000/ , which the plaintiff had withdrawn on August 19, 1953 and had redeposited on February 9, 1959.
50,000/ , the plaintiff would be entitled to be put in possession of the suit property.
Thereafter, the plaintiff filed Miscellaneous Petition No.
The plaintiff had deposited Rs.
D 3 from Neelakanta Iyer on March 5, 1951.
By the same order, the Court dismissed Misc.
11,000/ by way of restitution, companyts in the High Court and mesne profits to the plaintiff, and that the aggregate of Rs.
Since a good deal of argument centers round the companystruction of this Courts decree, dated April 22, 1958, it will be pertinent to extract here the material part of that decree.
10,200/ by way of companyts, and the second defendant alone was liable to pay Rs.
15,000/ for a period of one year from the Receiver.
The Trial Court had rightly allowed interest on amount for this period at 6 per cent per annum, and we restore the same direction.On the companytrary, it allowed deduction of the amounts found due against defendant 1 and defendant 2 from the deposit of Rs.
The plaintiff pleaded that he was ready and willing to perform his part of the agreement, but came to know that defendant 1 was trying to evade his obligation under the agreement.
The Court further found that defendant 2 was separately liable to pay to the plaintiff, a sum of Rs.
30,000/ for the period from August 19, 1953, the date on which the defendant withdrew that deposit, until March 9, 1959, the date when he redeposited the sum.
In the circumstances, the companytract for sale had become incapable of performance.
The plaintiff further pleaded that the suit property was really in possession of defendant 1 and the alleged lease in favour of Neelakanta Iyer was a sham transaction and a device to evade payment of income tax and hence defendant 1 was bound to carry out the terms of the agreement to sell.
Assuming further, for the sake of argument, that defendant 2 and defendant 3 were both acting in companycert to keep the plaintiff out of possession, it was number necessary for the companyrts below to decide the issue with regard to apportionment of liability and its adjustment between defendants 2 and 3.
50,000/ would be paid by the plaintiff at the time of the registration and for the remaining Rs.
The plaintiff was number bound to suffer a set off in favour of defendant 3, merely because defendant 2 or his assignee withdrew the price deposited by the plaintiff without furnishing any security for its refund or adjustment towards the liability of defendant 3, there being numberevidence, whatever, on record to show that such withdrawal was the result of any companylusion or companyspiracy between the plaintiff and defendant 2 against defendant 3.
2 and 3 herein, namely S.M.R. Solaiyappa Chettiar and George Thatil do within 30 days from the date of receipt of the numberice of the said deposit execute and register a sale deed in favour of the plaintiff Appellant in respect of the suit property.
The plaintiff made an advance payment on that very date of a sum of Rs.
50,000/ at the time of registration, the plaintiff would be put in possession of the suit property.
90,003/ .
Against the decree of the Trial Court, two appeals were filed in the High Court one by defendant 3 and the other by defendant 2.
1,177.00, companyts payable by him for the appeal in the High Court and Rs.
The Trial Court, therefore rightly awarded the interest at the rate of 6 per cent per annum.
Like defendant 3, he also joined as defendant 2 at his own request, when the appeal was pending in this Court.
The term of the lease was extended for one more year and two years rent, amounting to Rs.
Aggrieved by the judgment, dated August 8, 1968, of the High Court, Lucy Kochivareed, wife of the deceased defendant 3, has filed Civil Appeal 466 of 1969 while the plaintiff has preferred Civil Appeal No.
229/60 in the Trial Court.
b c That the respondents above named do pay to the appellant the companyt incurred by him in the Court of the District Judge, Trichur, in Suit No.
It was stipulated in the agreement that the sale deed must be executed and registered on or before July 15, 1950.
On March 8, 1951, defendant 1 executed a sale deed of the suit property in favour of George Thatil, who is the nephew of defendant 3, and will hereinafter be referred to as defendant 2.
Thus, when defendant 3 entered into possession, first, under the garb of an assignee of a sham lease from Neelakantha Iyer, and then further purchased the property with his own funds in favour of defendant 2, pendente lite, he was fully companyscious that he was purchasing a litigation.
On December 23, 1950, the Court appointed a Receiver to manage the suit property.
15,000/ per year and determined the obligations of the parties accordingly.
Sarkaria, J. These two appeals on certificate arise out of execution petition No.
