Kerala High Court
Varkey Paily Of Parayamthadathil ... vs Kurian Augusthy Of Vattappallil ... on 18 November, 1966
Equivalent citations: AIR 1967 KERALA 247, ILR (1967) 2 KER 1, 1967 KER LJ 212, 1967 KER LT 189
JUDGMENT Raman Nayar, J.
1. On 14-2-1963, the appellant obtained a preliminary decree for partition, redemption, and separate possession of his half share of the mortgaged property from the hands of his co-owner, the predecessor of the respondents who having redeemed the mortgage, was in possession The decree determined the appellant's share of the mortgage money at Rs. 31 and odd and required him in deposit this amount before seeking possession. It also provided that he would be entitled to mesne profits in respect of his half sharp at a specified rate from the date of the deposit until delivery of possession or until three years after the passing of the final decree, whichever event happened earlier The appellant made the deposit on 23-10-1954, and that being the price of redemption fixed by the Court, the mortgage came to an end see Prithi Naih v Suraj Ahir AIR 1963 SC 1041. Therefore the possession of the respondents' predecessor, in so far as the appellant's half share was concerned, was thereafter in his capacity as co-owner and not in his capacity as a mortgagee by subrogation. On 29-8-1966, the Court passed a final decree in the appellant's favour, and, in terms of the preliminary decree, awarded him mesne profits from 28-10-1954 until delivery of possession or unfit three years from the date of the final decree, whichever was earlier Some time after the deposit on 28-10-1964 it is not clear whether it was before or after the passing of the final decree on 29-8-1966, but that is of no consequence--the predecessor of the respondents effected an improvement in the property in the shape of a bond, and, when on 23-9-1967, the appellant applied to the executing Court for delivery he came forward with an application under Section 5(8) of (T. C.) Act 10 of 1956 for a variation of the decree by awarding him compensation for this improvement (He died pending the application and the respondents came on record as his legal representatives). This application was allowed on 20-8-1969 by which date (Kerala) Act 29 of 1953 had replaced (T C) Act 10 of 1956. The improvement was valued at Rs. 108.62 and the final decree was varied by requiring the appellant to make a further deposit of this sum before taking possession. The provision for mesne profits from 23-10-1954 made in the final decree was, however, left untouched.
On 4-9-1969 the appellant made the further deposit, and, on 18-9-1969, he obtained delivery. Then, in execution of his decide for mesne profits, he attached the amount in deposit whereupon the respondents brought the application out of which this appeal arises. They prayed for a raising of the attachment on the ground that, by reason of the provisions of Act 29 of 1868, they could be under no liability for mesne profits until the further deposit was made on 4-9-1959, their possession (and that of their predecessor) until then not being wrongful possession but possession authorised by the Act. (Of course, if that be so, nothing would be due under the decree since the decree awards mesne profits only, up to 29-8-1969 at the most) The first Court dismissed the application principally on the ground that an improvement effected after a decree for possession has been passed cannot have the effect of making possession prior to the Improvement rightful possession. The appellate court thought otherwise and allowed the respondent's application. Hence this second appeal which has come up before us because doubt was cast on the correctness of the Full Bench ruling of this Court in Mathai v. Narayana Pillai, 1960 Ker LT 1192=(AIR 1961 Ker 186 FB).
2. The provisions of Act 10 of 1956 are the same as those of Act 29 of 1958 and it is necessary to refer only to the provisions of the latter Act The relevant provisions are:
"2. Definition --In this Act, unless the context otherwise requires-
(a) "eviction" means the recovery of possession of land from a tenant;
* * * * *
(d) "tenant" with its grammatical variations and cognate expressions includes-
(i) a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee, or sub-mortgagee of land, is in possession thereof:
(ii) a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste land, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator; and
(iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements.
* * * *
4. Tenant entitled to compensation for improvements.-- (1) Every tenant shall, on eviction, be entitled to compensation for Improvements which were made by him, his predecessor-in-interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation had (sic, has) not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy of (sic, or) the payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of Court:
* * * * (2) A tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any.
5 Decree in eviction to be conditional on payment of compensation.--(1) In a suit for eviction instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation due tinder Section 1 for improvements, the Court shall ascertain as provided in Sections 7 to 16, the amount of the compensation and shall pass a decree declaring the amount so found due and ordering that on payment by the plaintiff into the Court of the amount so found due and also the mortgage money or the premium, as the case may be, the defendant shall put the plaintiff into possession of the land with the improvements thereon.
(2) If in such suit the Court finds any sum of money due by the defendant to the plaintiff for rent, or otherwise in respect of the tenancy the Court, shall set off such sum against the sum found due under Sub-section (1), and shall pass a decree declaring as the amount payable to him on eviction the amount, if any remaining due to the defendant after such set-off.
Provided that the Court shall not set off any sum of money due for rent as aforesaid. If such sum is not legally recoverable
3. The amount of compensation for improvements inside subsequent to the date up to which compensation for improvements has been adjudged in the decree and the re-valuation of an improvement for which compensation has been so adjudged, when and in so far as such re-valuation may be necessary with reference to the condition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the Court executing the decree and the decree shall be varied in the accordance with such order:
* * * * (3) It will be seen that although for the sake of convenience Clause (a) of Section 2 (like, for example, Article 67 of the Limitation Act, 1963) uses the word, "tenant" to mean a person in possession after his tenancy has determined, in other words, a quondam tenant, a tenant as defined by Clause (d) is a person in possession as a tenant, whether the tenancy be a true tenancy or lease, or what we might call a mortgage tenancy, or what might be described as a constructive or quasi-contractual tenancy which are also tenancies within the definition. But the definition, it is important to note, does not take in a quondam tenant.
4. Turning now to Sections 4 and 5, it will be seen that, while Section 4 confers substantive rights on the tenant Section 5 provides the procedure by which these rights are to be secured by the Courts in cases coming up before them. The substantive rights conferred by Section 4 on the tenant are the rights to compensation for improvements which were made by him, and, as a means of enforcing that right in cases where payment has not already been made, the ancillary right to remain in possession, not, be it noted, until compensation is paid, but until eviction in execution of a decree or order of Court And the procedure provided by Section 5 ensures that the Court will not evict the tenant until the compensation due to him is paid into Court for payment to him.
5. Section 4(1) begins by saving that every tenant shall, on eviction, be entitled to compensation for improvements which were made by him This does not mean that the right to compensation springs from eviction. The right to compensation is always there : and if not already paid (which means that there can be an earlier payment and that the right accrues when the improvement is made) It is payable on eviction. But, it seems to us clear, that the improvements must have been made while the person concerned was a tenant within the meaning of the Act (whether by definition or by reason of Sub-section (2) of Section 4), not after he had ceased to be a tenant and that the words, "on eviction" are not to be read as meaning that compensation is to be paid for improvements effected right up to the time of eviction, even for improvements effected after the person had ceased to be a tenant. Those would not he improvements made by a tenant within the meaning of the Act but by a quondam tenant and the words, "which were made by him" instead of, "which have been made by him" surely mean that the improvements must have been made by him as a tenant not after he had ceased to be tenant Thus, if a tenant has effected improvements during the currency of his tenancy, he is entitled to compensation for the improvements. If such compensation has not already been paid before the determination of the tenancy, or the payment or tender of the mortgage money, the tenant is under the latter part of Sub-section (1) of Section 4, entitled to remain in possession until eviction in execution of a decree or order of the Court. (It is important to note that the sub-section proceeds on the footing that what we have called a mortgage tenancy is determined by the payment or tender of the mortgage money--and this is in keeping with what is laid down in AIR 1963 SC 1041. It is also to be noted that the sub-section does not make the compensation part of the mortgage money--see also Sub-section (1) of Section 5 which speaks of the payment into Court by the plaintiff of the amount found due by way of compensation for improvements and also the mortgage money. Sub-section (2) of the section pro-vides that a tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of the lease or mortgage, if any. In other words, the combined effect of the two suit-sections is that a tenant to whom compensation is due under Sub-section (1) at the time of the determination of the tenancy is entitled, notwithstanding such determination, to continue in possession as a tenant. He becomes a statutory tenant notwithstanding that the contractual tenancy (which term we shall use to denote a tenancy as defined in Section 2(d) and as including a mortgage tenancy) has determined, if, thereafter, he effects improvements he would be entitled to compensation for such improvements for they would be improvements, effected by him while he was a (statutory) tenant.
But, a person to whom no compensation is due under Sub-section (1) at the time of the determination of his (contractual) tenancy is not entitled to remain in possession under that sub-section and does not if he continues in possession, hold as a tenant under Sub-section (2). Any improvements effected by him after the determination would not be improvements made by a tenant and therefore he would not be entitled In any compensation under Sub-section (1). No doubt the words, "has not already been paid" occurring in the first part of the sub-section relate in point of time to the eviction, but, equally so the words, "to whom compensation is so due" occurring in the second part relate to the determination of the (contractual) tenancy. If, at that time, compensation is due under the first part of the sub-section in other words, if the tenant has effected improvements but has not already been paid compensation for them, then, notwithstanding the determination of his (contractual) tenancy, he is under the second part entitled to remain in possession until eviction in execution. But not if compensation is not due at the time of the determination of the contractual tenancy If compensation is due and he continues in possession, as he is entitled to, his continuance is as a statutory tenant under Sub-section (2), and, by reason of Sub-section (1) he would be entitled also to compensation for improvements effected by him as such tenant till the determination of this statutory tenancy by eviction in execution; and this additional compensation would also be payable on eviction.
6. When then does this statutory tenancy determine so as to disentitle the tenant to remain in possession and to compensation for Improvements effected thereafter? According to the second part of Sub-section (1) of Section 4 read with Sub-section (2) of the section, "until eviction in execution of a decree or order of Court." The tenancy is not determined by a decree for eviction; there must be eviction in execution And since, "eviction" means the recovery of possession of land from a tenant, in other words, actual delivery, an overliteral construction would lead to the absurdity that the statutory tenancy can never determine and that the tenant can never be evicted. For, how can a tenant whose tenancy has not determined be evicted?
And how can his tenancy be ever deter-mined if actual delivery it necessary to effect a determination? We should think that what the second part of Sub-section (1) of Section 4 really means is that the tenant "to whom compensation is so due" is entitled to remain in possession until eviction (in other words, delivery of the property) is ordered in execution of a decree or order of Court. The executing Court is empowered to determine the statutory tenancy by making such an order and Sub-section (3) of Section 5 ensures that, notwithstanding a decree for eviction made under Sub-section (1), it will do so only after the entire compensation due to the tenant under Sub-section (1) of Section 4 for improvements effected during the continuance of his tenancy (contractual and statutory) is paid into Court. For that purpose it is empowered to vary the decree already made--to go behind that decree as it were--by ordering that the defendant shall put the plaintiff into possession on the latter paying into Court compensation as re-assessed under Sub-section (3) of Section 5. (This, it may be noted, can conceivably lead to a reduction of the amount payable owing to a set off of rent subsequently accrued or a deterioration in the condition of the improvements) Once an order for delivery is made in execution and the statutory tenancy determined there can he no question of the defendant being entitled to remain in possession as a tenant by effecting improvements thereafter (for which again compensation has to be determined and paid) and thus, by a repetition of the process, indefinitely postponing eviction. And should the defendant be disposed continually to effect fresh improvements after compensation has been assessed, solely with a view to make reassessments and consequent variations of the decree necessary, thus involving an indefinite postponement of the order for delivery, that would be an abuse of the process of the Court which the Court would probably meet by the appointment of a receiver or by the issue of an injunction (See Columbus v. Narayanan, 1954 Ker LT 518 and Thanu Pillai v. Mathevan, 1962 Ker LT 688= (AIR 1963 Ker 170 FB)
7. If Section 1 operates so as to entitle a tenant to compensation for improvements effected for the first time after the determination of his contractual tenancy and makes a statutory tenant of him until eviction in execution of a decree or order of Court, it should follow that he would be entitled to compensation for improvements made even after the decree right up to the lime of actual eviction. But Section 5 does not provide for this The decree referred to in Sub-section (3) of Section 5 is obviously a decree made under Sub-section (1) (read with Sub-section (2) ) of the section. A decree under Sub-section (1) is not a mere decree for possession but is a decree to be passed when "the defendant establishes a claim for compensation due under Section 4 for improvements". It has to declare the amount found due for such compensation and has to order that, "on payment by the plain-tiff into Court of the amount so found due and also the mortgage money, or the premium as the case may be, the defendant shall put the plaintiff into possession of the land with the improvement thereon.
A decree for possession in which the defendant does not establish a claim for compensation and which therefore does not declare the amount due to him on that account is not a decree under Sub-section (1) of Section 5 and is therefore not a decree to which Sub-section (3) applies so as to enable the Court to vary the decree by awarding compensation for improvements made subsequent to the date upto which compensation has been adjudged by the decree or by re-valuing an improvement for which compensation has been so adjudged- see in this connection Velukutty v. Simson, (1961) 2 Ker LR 238, Narayanan Nair v. Kamalakshi Amma, 1963 Ker IT 1091. Kesava Pillai v. Mariamma, 1963 Ker IT (SN) 7 (S. A. No. 1241 of 1959) and Padmanabha Pillai v. Sarojini Amma, 1966 Ker IT 252.
Thus, if a decree for eviction (which can, of course, he passed only after the determination of the contractual tenancy) awards no compensation for improvements, no improvements having been effected or compensation having already been paid, it is not a decree under Sub-section (1) of Section 5, and Sub-section (3) of that section cannot apply to enable a variation so as to award compensation for improvements subsequently effected. The Act provides no machinery by which compensation for such subsequent improvements can be secured to the tenant--in the absence of a variation, the decree can be executed as it stands--and that is a pure indication that such compensation is not payable, in other words, that a person to whom no compensation is due at the time his contractual tenancy determines, is not authorised to remain in possession by Sub-section (1) of Section 4 and does not become a statutory tenant under Sub-section (2) thereof.
8. If a person who has effected no improvements during the currency of his contractual tenancy (or to whom compensation has already been paid) were entitled to remain in possession as a statutory tenant after the determination of his tenancy until eviction in execution, and to claim compensation for improvements that might be effected by him up to the time of the eviction Section 4 would have been very differently worded It could simply have said that "every tenant shall notwithstanding the determination of his tenancy he entitled to remain in possession as a tenant subject to the terms of his lease or mortgage if any, until eviction in execution of a decree or order of a Court and shall, on such eviction be entitled to compensation for improvements made by him." But what Sub-section (1) of Section 4 actually says is that every tenant, shall on eviction, be entitled to compensation for improvements made by him and for which compensation has not already been paid. And the second part of the sub-section emphasises that it is only a tenant to whom compensation is so due that is entitled to remain in possession, notwithstanding the determination of his tenancy, until eviction in execution.
It is only a tenant so continuing in possession that becomes a statutory tenant by reason of Sub-section (2) which says that "a tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any". Does this not mean that it is only a tenant to whom compensation is due at the time of the determination of his contractual tenancy that is entitled to remain in possession as a statutory tenant until eviction in execution, and that a tenant to whom no compensation is due at the time of the determination of his contractual tenancy is not so entitled? If he is not entitled to remain in possession and does not continue as a statutory tenant after the determination of his contractual tenancy, it follows that he is not entitled to compensation for any improvements he might have effected after such determination.
9. It is not the purpose of the Act to prevent the eviction of quondam tenants in wrongful possession, or to render such eviction difficult by lending them a handle for obstruction, least of all to encourage mortgagees to defeat the mortgagor's right to redeem. The purpose is simply, in the words of the preamble, "to make provision for payment of compensation for improvements made by tenants", not, he it noted, improvements made by persons who have ceased to be tenants. The statute proceeds on the basic assumption that the tenancies it defines partake of the nature of improvement leases, that it is the intention of the parties, whether consciously entertained and expressly stated, or implied by usage, or compulsority imposed by the statute itself even against provision to the contrary see Section 17 -that the tenant should, so long as he is in lawful possession as a tenant, improve the property in a manner consistent with the purpose for which it is let. (That is a customary incident of a possessory mortgage in Kerala--the mortgagee is authorised, indeed expected, to make improvements- -and hence the fictional tenancy of a mortgagee in possession. And, although that might not be as true today as it was when Madras Act I of 1900, which Act 29 of 1958 copies, was enacted, unoccupied waste lands--of which there were vast extents, the ownership of which was sometimes unknown even to the real owner himself--constituted a standing offer as it were to whomsoever chose to improve and cultivate them to do so on condition of paying a reasonable rent. And hence the constructive or quasi contractual tenancies, which we suppose must be regarded as tenancies at will.) So long as he is in possession, the tenant enjoys the fruits of his improvements. But he has to give them up to the landlord with the land when he is evicted on the expiry of his tenancy, and it is only just that the landlord who is thus enriched at his expense should make due recompense. Therefore the landlord must pay him compensation before he is evicted. Unless this has been done--and since the quantum of compensation might very well be a matter of bona fide dispute, actual payment (which involves acceptance by the tenant) is necessary mere tender of what the Court might eventually hold to be sufficient is not enough, see Parameswara v. Valia Mannadiar, AIR 1918 Mad 381 and Mooriath Variath v. Nangayaramma, AIR 1919 Mad 272,--the tenant is, notwithstanding the determination of his tenancy, entitled to remain in possession as a tenant until eviction in execution of a decree of Court. And the Court will see to it that until compensation for improvements effected during the continuance of the contractual and statutory tenancy is paid into Court, the tenant is not evicted. The Court will order that, on such payment being made, the tenant shall put the landlord in possession. There will necessarily be an interval between the date up to which compensation has been assessed and the date of the payment into Court, and, if the landlord delays payment thus allowing an interval long enough for the tenant to make further improvements, a reassessment will have to be made and the decree varied accordingly.
10. This, it seems to us, is what Sections 4 and 6 of the Act, on a plain construction of their language provide for. A person to whom nothing is due on the determination of his contractual tenancy, or the entire money due to whom as determined by the decree for eviction (whether the original or the varied decree) has been paid into Court, should surrender possession without waiting to be evicted in execution. His possession thereafter is wrongful possession, deliberately so, and that he chooses to effect improvements while in such wrongful possession cannot in justice found any claim for compensation or any right to remain in possession to secure such a claim: So the Act does not provide for this.
11. What was decided in 1960 Ker LT 1192 = (AIR 1961l Ker 136 FB), was, in the words of the headnote, that "a tenant is entitled to be in possession until he is paid not only the amount of compensation embodied in the decree as originally passed but also compensation granted under Sub-section (3) of Section 5". As a statement of the combined effect of Sections 4 and 5 this is unexceptionable, but, it is to be noted that what Sub-section (1) of Section 4 actually says is that every tenant to whom compensation is due under the provisions of the sub-section shall be entitled to remain in possession until eviction in execution. And Section 6 ensures that such eviction will not be effected until the plaintiff pays into Court, not merely the amount declared due under the original decree made under Sub-section (1) but also the further amount, if any, declared due by the varied decree made under Sub-section (8). This additional amount is also an amount due under Sub-section (1) of Section 4 and, if such additional amount is adjudged, a varied decree under Sub-section (3) of Section 6 will naturally say that the defendant is to put the plaintiff in possession only if the entire amount declared due, including this additional amount, is paid into Court. That is how the substantive right conferred by Sub-section (1) of Section 4 on a tenant to whom compensation is due under that sub-section to remain in possession until such compensation is paid, is enforced. But the right to remain in possession stems not from Sub-section (8) of Section 5 but from Sub-section (1) of Section 4.
12. 1960 Ker LT 1192 = (AIR 1961 Ker 186 FB), said nothing about profits. It did not consider the question that we have here to decide, namely whether a person who for the first time sets about effecting improvements, after the determination of his (contractual) tenancy is entitled to remain in possession under Sub-section (1) of Section 4 until eviction in execution and becomes a statutory tenant under Sub-section (2). But it seems to us that P.T. Chani v. A. Ana Pattar, AIR 1917 Mad 619, AIR 1918 Mad 381 and AIR 1919 Mad 272, decided under the identical provisions of the parent Act, Madras Act 1 of 1900, place the same construction on these provisions as we have done. What those decisions lay down is that a mortgagee tenant who has been paid or tendered the mortgage money and has also been paid--the first of these decisions held that tender of the proper amount was sufficient but the remaining two held that that was not enough and that there must be actual payment, involving as it does acceptance by the tenant a view with which we are in respectful agreement--compensation for Improvements (if any) effected by him is liable in mesne profits if he remains in possession thereafter. But not if he has not been paid (or according to the first decision, tendered) compensation (if any) due. In that (latter) event he is entitled to remain in possession and is therefore not liable in mesne profits until eviction in execution of a decree or order of Court.
The basis of these decisions can only be that while the contractual tenancy determines on payment or tender of the mortgage money, a statutory tenancy comes into being if compensation has not been paid and is due for improvements (if any) effected. That statutory tenancy is determined only when, by agreement between the parties, the tenant receives the compensation then due, or the Court determines the tenancy on the plaintiff paying into court the entire amount due by way of mortgage money and compensation as determined by the original decree made under Sub-section (1) or where it is varied, by the varied decree made under Sub-section (3) of Section 5.
13. It is true that a person who is entitled to be in possession cannot be liable in mesne profits. But it does not follow that he is under no liability whatsoever in respect of profits A mortgagee is entitled to be in possession. Nevertheless he is liable to account for profits to the mortgagor. This is none the less so in the case of a mortgage falling under Section 77 of the Transfer of Property Act--only there the accounting is done in advance on the basis of a reasonable estimate of the profits. Once the entire amount due on the mortgage is tendered or deposited into Court, Interest ceases under Section 84 of the Transfer of Property Act, and, under Clause (1) of Section 76, the mortgagee becomes liable to account for his entire receipts from the property even in cases where the mortgage falls within Section 77. As we have already noticed, Act 20 of 1958 does not make compensation payable under Section 4(1) thereof part of the mortgage money, and, whether the payment of such compensation in addition to the mortgage money is necessary to cause a cessation of interest under Section 84 of the Transfer of Properly Act and attract the liability to account under Section 76(1), will depend on whether, under the terms of the mortgage, the mortgagee is entitled to add the amount due by way of compensation to the principal money, or on whether the improvements can be regarded as accessions acquired with the assent of the mortgagor so as to attract Section 63 of the Transfer of Property Act. Therefore, it would not be right to say, as has been suggested, that so long as one paise remains due by way of compensation for improvements, a mortgagee tenant being entitled to remain in possession, is under no liability in respect of profits He would ordinarily be liable to account for profits the moment the amount due on the mortgage is deposited, and, it is only in cases where compensation for improvements forms part of the mortgage money that the statement is true.
14. In the case on hand, no compensation was due to the mortgagee--it has been assumed on all hands that a subrogee is at mortgagee within the meaning of the Act--on the determination of his contractual tenancy. The improvement for which compensation has been awarded was effected only after such determination. The mortgagee was not a tenant to whom compensation was so due within the meaning of the second part of Sub-section (1) of Section 4 and therefore not a person entitled to remain in possession until eviction in execution notwithstanding the determination of his (contractual) tenancy. Therefore, his possession was wrongful possession and he was liable in mesne profits. In fact, he was not really entitled to a variation of the decree under Sub-section (3) of Section 5 so as to allow him compensation for the Improvement effected by him; but, the order making the variation has become final and can no longer be questioned.
15. For the appellant it has been argued that the mortgage tenancy having determined in 1954 neither (T. C.) Act 10 of 1950 nor (Kerala) Act 29 of 1958 (neither of which has retrospective operation) has any application to the case. Also, that since the variation ordered under Sub-section (3) of Section 5 of Act 29 of 1958 left the decree for mesne profits untouched, the executing Court is bound to execute that decree so long as it stands. Even if sub-section (3) of Section 5 gives it jurisdiction to vary the decree for mesne profits it cannot, so long as it is not varying the decree (which it has not even been invited to do), go into the question whether mesne profits are actually due or not.
As against this, it is contended for the respondents that the order made under Sub-section (3) of Section 5 having become final would be res judicata both as to the applicability of Act 29 of 1958 and as to the right of the mortgagee to compensation under Sub-section (1) to Section 4 and therefore to remain in possession until eviction in execution. The present application, it is said, though statedly only for a release of the attachment, must be regarded as an application to the executing Court for a further variation of the decree under Sub-section (3) of Section 5 by deleting the direction for payment of mesne profits, the mesne profits decreed being within the expression "any sum of money accruing due to the plaintiff subsequent to the said dale for rent, or otherwise in respect of the tenancy" occurring in the sub-section. These contentions, both of the appellant and the respondents, are for the first lime raised in the course of the argument before us and we are not disposed to countenance them.
16. In the result we allow this appeal and dismiss the application made by the respondents with costs throughout.