IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RSA.No.164 of 2009 (C) ---------------------------- AS.145/2003 of SUB COURT,NEYYATTINKARA OS.348/1975 of PRL.M.C., NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS 8 & 11 ---------------------------------------------------------- 1. ALEXANDER D.COSTA WILSON D'COSTA VIKDRODAYAM HOUSE, VIZHINJAM DESOM, KOTTUKAL VILLAGE. 2. ELIZABATHAMMAL D'COSTA, ROSE MARITHMMAL D'COSTA, POOVANVILAKAM, VIKDRODAYAM HOUSE, VIZHINJAM DESOM, KOTTUKAL VILLAGE BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFFS ---------------------------------------------------- 1. ANTHONIYA FRANCE FRANCHITHA FRANCE KARIYILAKKATTU THIRUDHRIDAYA MANDIRAM, VIZHINJAM DESOM, KOTTUKAL VILLAGE. 2. ASTHONIA FRANCE JANET FRANCE KARIYILAKKATTU THIRUDHRIDAYA MANDIRAM, VIZHINJAM DESOM, KOTTUKAL VILLAGE. SRI.G.S.REGHUNATH (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.164 of 2009 ------------------------------------------------ Dated this the 10th day of February, 2009 JUDGMENT This is appeal filed by defendants 8 and 11 in O.S.348/75 on the file of the Munsiff's Court, Neyyattinkara. The said suit was one for redemption of a mortgage. Preliminary decree passed therein became final long back and final decree was passed by the final decree court on 14/08/02 on I.A.2515/01 providing inter alia that the defendants are to deliver all the documents to the plaintiffs and are to re-transfer at the cost of the plaintiffs the mortgaged property and put them in possession of the property within a period of one month and that the plaintiffs are entitled to get profits from the defendants at the rate of Rs.876/- per year from 17/03/1984 to the date of delivery of possession of the property and to cost of the final decree R. S. A. No.164 of 2009 -2- proceedings. The said final decree was assailed by defendants 8 and 11 before the first appellate court filing A.S.145/03 and that was dismissed by the first appellate court confirming the final decree and judgment passed by the court below. It is therefore, that this R.S.A has been filed by defendants 8 and 11 who lost their contentions in A.S. 145/03. 2. This R.S.A was admitted by this Court on the following substantial question of law:- “When there was no claim of profits or mesne profits in the plaint and the preliminary decree also did not provide for profits, was the final decree court justified in awarding profits payable from 1973 onwards?” 3. Actually the award of the mesne profits is only 17/03/1984 and recording the year as 1973 in the substantial question of law could only be a mistake. However, counsel for the respondents submits that the respondents/plaintiffs do not want profits to R. S. A. No.164 of 2009 -3- be recovered from the defendants as provided in the final decree passed by the courts below and this R.S.A to the above extent be allowed. The counsel for the appellants also is agreeable for such a disposal of the appeal. 4. In the result, I modify the final decree passed by the final decree court and confirmed by the first appellate court deleting that portion of the decree which provides that the plaintiffs are entitled to get profits from the defendants at the rate of Rs.876/- per year from 17/03/1984 to the date of delivery of possession of the property. In all other respects the decree concurrently passed by the court below is confirmed. 5. This R.S.A is thus allowed in part. K.P.BALACHANDRAN, JUDGE kns/-