FACTS OF THE CASE

Aman ShuklaKaran ChaudharyAbhishek ChhabraLUCY v. MARIAPPAAIR 1979 SC 1214 a

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 to sale a factory known as sivakami tiles works for a consideration of rs 90,003.Plaintiff made an advance payment on that very date of a sum of rs. 5,003 to defendant 1 (soliappa chettiar). It was stipulated in the agreement that the sale deed must be executed and registered on or before July 15, 1950.It was further provided that out of the balanced of sale considerations, rs.50,000 would be paid by the plaintiff at the time of the registration and for the remaining rs.35,000 , the plaintiff was to execute a mortgage of the suit property to be redeemed on or before may31st, 1951.FACTS OF THE CASE

It was further agreed that on payment of rs.50,000 at the time of registration, the plaintiff would be put in possession of the suit property.The plaintiff pleaded that he was ready to perform his part of the agreement, but came to know that defendant 1 was trying to evade his obligation under the agreement.Accordingly, the plaintiff sent a registered notice, 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 1 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.

The plaintiff further pleaded that the suit property was really in possession of defendant 1 and the alleged lease in favor 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 sale.

Under Sec.2 (12), Mesne Profit is defined as those profits which person in wrongful possession of property actually received or might with ordinary diligence have received there from together with interest on such profit does not include profits due to improvements made by person in wrongful possession. MESNE PROFIT

A decree may be partly preliminary and partly final eg. In a suit for possession of immovable property with Mesne profits where the court : a decrees possession of the property b: directs and enquiry into the Mesne profit. PARTLY PRELIMINARY AND PARTLY FINAL DECREE

The case when initially went to the district court of trichur the mortgaged property/factory was given to plaintiffs deceased husband T.V. kochivareed(here referred to as defendant 3).The suit property was given to George thatil on march 8, 1951 nephew of defendant 3. the trial court further appointed a receiver to manage the suit property on 21 march, 1951 trial court ordered defendant 3 to pay a rent @15,000 p.a to the receiver as the property has been in questioned for 2 years, the rent amount is rs.30,000. JUDGEMENT OF THE CASE

On august 28, 1952 a decree for specific performance and Mesne profit at a reduced rate of 15,000 was claimed by the plaintiff.On march 31, 1953 defendant 3 and 2 filed two separate suits in the high court.The high court gave the decision that a sum of rs.85,000 were to be paid by defendant 1 and 2 within 30 days. Also the high court gave the decision that all the cost incurred by the plaintiff in the court of district judge were to be paid by the above respondents.

Defendant 2 filed a suit that he was not liable for payment of Mesne profit as he had never been in possession and management of the suit property.The district court on December 22, 1962 gave the decision that defendants 1,2 and 3 were jointly liable for a amount of rs.10,162.67 on account of cost of the trial court and supreme court.Defendant 2 was liable for rs.11,941.63 separately which included cost recovery by defendant 2 from decree holder.Interest by way of restitution and cost of high court.

Defendant 3 was liable for amount of rs.1,57,086.81 which included cost of restitution rs.39,975 rent and interest or rs.1,08,63.71 as net Mesne profit as he was found to be in possession and management of property. He gave the court a sum of rs.48,321.The council on the side of defendant 3 held that the defendant 2 as well as the defendant 3 were jointly liable for Mesne profit as both of them were in possession of property.The court on this contention gave the judgment that only defendant 3 was liable for Mesne profit as he had been using the property for the time the suit was in question. Also he had signed an agreement with neelkanta iyer that he was the owner of the factory on behalf of the plaintiff.

Here in this case the decree is partly preliminary and partly final the reason being that the former part of the decree is final while the latter part is preliminary because the final decree for Mesne profit can be drawn only after enquiry and the amount due is ascertained.The plaintiffs appeal was partly allowed as well as the defendants appeal was partly allowed. Interest @6% was given on the sum of rent which computed to rs.30,000 while the defendant was allowed to set off the sum of rs.14,000 being the intreset on the sum of rs.50,000 interest on the outstanding amount @6% p.a shall be payable till the date of payment.In civil appeal 466 of 1969 the parties will bear their own cost in court.

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