ORDER
K.S. Radhakrishnan, J.
1. Question that arises for consideration in these cases is whether realization of mesne profits in a decree for recovery of possession and mesne profits is hit by Section 10 of the Kerala Scheduled Tribes (Restriction on Alienation of Land and Restoration of Alienated Lands) Act, 1975 (hereafter called the Act).
2. CRP. 1379 of 1997 arises out of the order in EP. 3 of 1997 in O.S. 68 of 1974 and CRP. 1354 of 1997 arises out of the order in EP. 4 of 1997 in O.S. 30 of 1974 of Subordinate Judge's Court, Kasaragode. In E.P. 3 of 1997 the decree holder seeks recovery of an amount of Rs. 21,747.97 while in EP. 4 of 1997 the amount claimed is Rs. 42,992.10. Decree holder seeks to realize the above amounts by attachment and sale of properties of the judgment debtors. Judgment debtors have already surrendered possession as per decree but did not pay the mesne profits decreed. When execution petitions were preferred for recovery of mesne profits contention was raised claiming benefit of Section 10 of the Act. Executing court took the view that mesne profits mean money and that portion of the decree is quite independent of the decree granting recovery of possession. On that reasoning executing court took the view that the immovable property of a member of a Scheduled Tribe cannot be attached or sold in execution of a decree for mesne profits. Consequently, both the execution petitions were dismissed. Aggrieved by the same these revision petitions are preferred.
3. Sri. K. Lakshminarayanan, counsel appearing for the revision petitioner submitted that the court below has committed an error in its reasoning that mesne profits mean money and that portion of the decree is quite independent of the decree granting possession. Counsel referred to the definition of mesne profits in Section 2(12) of the Code of Civil Procedure and submitted that decree passed for mesne profits was for return of profits wrongfully enjoyed by the judgment debtors and since profits enjoyed cannot be returned, the same is quantified in terms of money and as such the decree cannot be termed as a money decree. In support of his contention counsel referred to a decision of the Calcutta High Court in India Electric Works v. B.S. Mantosh : AIR1956Cal148 and Ganesh Prasad Varma v. Govardhan : AIR1975All146 . Counsel also referred to the decision of the Apex Court in Lucy Kochuvareed v. P. Mariappa Gounder AIR 1979 SC 1214. Reference was also made to a Division Bench judgment of this Court in Prabhakaran Filled v. Subhashani Amma 1980 KLT 777.
4. Counsel appearing for the judgment debtors submitted that the executing court is right in holding that the decree for mesne profits cannot be executed in view of the prohibition contained in Section 10 of the Act. Counsel submitted, the purpose and object of Section 10 is to see that no money be realized from the Scheduled Tribes either by way of money decree or by way of recovery of mesne profits.
5. The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 was enacted to provide for restricting the transfer of lands by members of Scheduled Tribes in the State of Kerala and for the restoration of possession of lands alienated by such members and for matters connected therewith. Section 10 of the Act says that for the execution of a money decree against a member of a Scheduled Tribe, no right or interest held by him in any immovable property, shall be liable to be attached or sold except to the extent and in the manner prescribed. Section 10 therefore specifically refers to 'money decree'. Order 7 Rule 2 says' that where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise or reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for Order 20, Rule 12 deals with decree for possession and mesne profits which says that where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree for the possession of the property and for mesne profits. The liability to pay mesne profits goes with actual possession of the land, Apex Court in Lucy Kochuvareed's case (supra) has considered the scope and meaning of the expression 'mesne profits'. We may extract the relevant portion of the judgment for easy reference.
Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and 'the Court may mould it according to the justice of the case'. Even so, one broad basic principle governing me liability for mesne profits is discernible from Section 2(12) of the Code of Civil Procedure which defines 'mesne profits' to mean 'those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession'. From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiffs dispossession, or, his being kept out of possession can be regarded as a joint or concerted 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 his confederates.
Calcutta High Court in India Electric Works' case (supra) has taken the view that a suit for compensation for use and occupation is a money suit but not a suit for recovery of possession of immovable property and for mesne profits. Allahabad High Court in Ganesh Prasad Varma's case (supra) has also supported the above reasoning.
6. The mesne profits being in the nature of damages goes along with the recovery of possession. Decree for mesne profits as such cannot be equated with a money decree. Wrongful possession of the judgment debtor is the very essence or a foundation of a claim for mesne profits. The judgment debtors liability to pay mesne profits goes with actual possession of the land. Legislature has used the expression 'money decree' in Section 10 of the Act, which means money decree simplicitor. Court is not expected to enlarge the meaning and ambit of Section 10 since it is an exemption to the ordinary rule and prohibitory in nature, and called for strict interpretation. A decree for recovery of possession with mesne profits cannot be characterized as a money decree within the meaning of Section 10 of the Act. Legislature in its wisdom wanted to prohibit attachment of immovable properties only in execution of 'money decree' but not in respect of other decrees like recovery of possession with mesne profits etc. especially when wrongful possession of the judgment debtors is the very essence of a claim for mesne profits and the very foundation of the judgment debtor's liability therefor.
7. Under such circumstance I find it difficult to accept the reasoning of the executing court. Orders passed by the executing court is therefore set aside. CRPs are allowed as above. Executing court would take back the execution petitions and dispose of in accordance with law since execution petitions are not hit by Section 10 of the Act.