LexL. KOCHIVAREED versus P. MERIAPPA GOUNDER AND ORS.
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B c D E F G H 58 L. KOCHIVAREED v. P. MERIAPPA GOUNDER AND ORS. February 7, 1979 [R. S. SARKARIA, V. D. TULZAPURKAR AND A. P. SEN, JJ.] Mesne Profits-Liability for mesnt profits, principle of-Section 2(12) of the Code of Civil Procedure 1908 (A.ct V of 1908). Civil Procedure Code, 1908, Order XX Rule 12-Construction of decree explained-Nature of the decree of the Court dated April 22, 1958 clarified. Words and Phrases-"Whichever event first occurs" in Rule 12(1)(c)(iii} of order XX C.P.C.-Meaning of. Civil Procedure Codt~. S. 144-Scope of. Meriappa Gounder respondent No. 1 in C.A. 466 /69 and appellant I in C.A. 2375/69 filed e suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement dated May 22, 1950 made by one Soliappa Chettiar. The said Soliappa Chettiar pleaded inability to perform the contract in view of the refusal of one Neelakanta Iy'er a lessee of the factory to give up possession. Pending the suit Late Kochiyareed, husband of the appellant in C.A. 466 /69 obtained an assignment of the lease from Neelakanta Iyer on March 5, 1951. On March 8, 1951 Soliappa Chettiar executed a sale deed of the suit property in favour of one George Thatil, a nephew of Kochivareed. In the course of the proceedings the trial court appointed a Receiver to manage the suit property. On March 21, 1951, Late Kochivarced obtaffied a lease of the suit property at a rent of Rs. 15,000/- for a period of one year which was renewed for anqtber year fron1 the Receiver and a sum of Rs. 30,000 /- so collected as rent for t\VO years was deposited in the Court by the Receiver. The District Court on August 28, 1952 decreed the suit for specific per- formance and mesne profits at a reduced rate of Rs. 15,000/- per annum, instead of at Rs. 30,000/- per annum as claimed. Against the decree two appeals were filed in the High Court by Kochivareed and George Thatil. The High Court allowed the appeals and dismissed the suit by its judgment dated March 21, 1953. The appeal filed by Meriappa Gounder (CA 129 /56) was allowed by this Court as per its judgment and decree dated April 22, 1958. On tlte question of the liability of the mesne profits, the present appeals aro6e out of interpretation of the direction ( e) of this Court's decree dated April 22, 1958. Allowing the appeals by certificate in part the Court, HELD : 1. Mesne profits being in the nature of damages. no invari&t~te role governing their award and assessment in every case can be laid do\vn and the "Court may mould it according to the ju~tice of the case''. Even so one broad basic principle 2oveming the liability for mesne profits is discernible • \.. -~ ' .... ,. A > ~ .... t• Ii ... " ... \ L. KOCHIVAREED V. P. M. GOUNDER 59 from section 2 ( 12) of the Code of Civil Procedure which defines 'mesne A profits' to mean 'those profi~ which the person in wrongful pos.Jes:Jion of property (lctually received or might with ordinary deligence havo received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession." [680-H, 69A] Wrongful pos.session of the defendant is the very essence of a claim for n1esne profits and the very foundation of the defandant's liability therefor, Generally, the person in wrongful possession and enjoyment of the im- movable property is liable for mesne profits. But, where the plaintiff'~ dis- pOiiesaion, or his being kept out of possession can be regarded as a joint or concreted act of several persons, each of them who participates in the Commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of hii confederates. Possession through another, such as a tenant may be sufficient to create liability for mesne profits, if such possession is wrongful. [69A-C and GJ 2. In such a case, where the claim for mesne profits is against several trespassers 'vho hnd combined to keep the plaintiff out of possession, it IS open to th~ Court to adopt either of the two courses. It may by itli decree hold all such trespas!l!ers jointly and severally liable for mesne profits leaving them to have the.ir respective rights adjusted in n separate suit for contribution; or it may, if there is proper material before it ascertain and apportion the liability of each of
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