Whether mesne profits is debt?

The decree-holder in his counter-affidavit contended inter alia that the debtor is not a small farmer as he is cultivating about Ac. 10.00 of land belonging to other also on lease and deriving an income of Rs. 1,200/- per year and that in any case the execution, which relates to recovery of mesne profits does not abate, as to mesne profits are excluded in the definition of 'debt' under the Indebtedness Relief Act. It was also pleased that the liability of the petitioner had arisen out of a tortious liability and was specifically excluded under the definition of 'debt' in S. 3 (i) of the said Act.
A fortiori the liability of a person in wrongful possession for payment of mesne profits must be deemed to have been excluded from the definition of 'debt'. That this was the obvious intention of the Legislature is again plain from item (v) of the liabilities excluded, wherein liability arising out any tortious liability is also not included in the definition of 'debt'. In Wharton's Law Lexicon, "anything done by the wrong; an act involving a forfeiture of property". In Oxford dictionary one of the meanings given for 'tortious' is "wrongful'. In Corpus Juris Secundum 'tortious' has been defined to mean "wrongful ; of the nature of a tort' it is convertible with the term 'unlawful'". It is clear from the definition of 'mesne profits' in S. 2 of the Civil P. c. that the essence of the claim for mesne profits is wrongful possession of the property. There can be no claim for mesne profits if the possession has not been wrongful. Therefore, 'mesne profits' clearly fall within the meaning of the words 'tortious liability' excluded from the definition of 'debt' under item (v). 

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. Nos. 1966 and 3106 of 1977

Decided On: 19.01.1978

Vijjrapu Sarayya  Vs. Vinnakota Savitramma and Anr.

Hon'ble Judges: 

P. Chennakesav Reddi, J.

Citation: AIR1978AP304

1. A short but subtle question of general interest and importance is raised for resolution in these revision petitions. The question is whether the expression 'debt' as defined in S. 3(i) of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (Act No. 7 of 1977), hereinafter referred to as 'Indebtedness Relief Act' includes also 'Mesne Profits". Before embarking on a consideration of the question, it would be profitable to make plain the facts in one of the cases, as the facts in both the cases are identical. For the sake of convenience, the facts in Civil. Revision petition 19666 of 1977 may be stated.

2. The petitioner is the judgement debtor in E. P. No. 95 of 1965 in O. S. No. 6 of 1951 on the file of the Subordinate Judge, Amalapuram. He filed a petition under S. 4 (1) of the Andhra Pradesh Ordinance 25/76 which has since been repealed and replaced by the Indebtedness Relief Act, claiming that he is a small farmer entitled to the protection of the provision of the said ordinance and that the proceedings in the Execution petition are liable to be abated.

3. The decree-holder in his counter-affidavit contended inter alia that the debtor is not a small farmer as he is cultivating about Ac. 10.00 of land belonging to other also on lease and deriving an income of Rs. 1,200/- per year and that in any case the execution, which relates to recovery of mesne profits does not abate, as to mesne profits are excluded in the definition of 'debt' under the Indebtedness Relief Act. It was also pleased that the liability of the petitioner had arisen out of a tortious liability and was specifically excluded under the definition of 'debt' in S. 3 (i) of the said Act.

4. On a consideration of the evidence adduced on behalf of the debtor and the creditor, the learned Subordinate Judge held that the petitioner-debtor is a small farmer. He however, held that the definition of 'debt' in the Indebtedness Relief Act did not include 'Mesne Profits' and that there was no relationship of creditor and debtor in case of mesne profits arising out of wrongful possession of the property which is a tortious liability. Accordingly, he held that the Execution Petition did not abate and dismissed the application. That in brief is the genesis of these revision petitions by the debtors.

5. The problem posed must necessarily be resolved from a reference to the relevant from a reference to the relevant provisions of the Indebtedness Relief Act. S. 3 (i) which defines 'debt' in so far as it is relevant reads as follows:

"3 (i) 'debt' includes any liability owing to a creditor in case or in kind, whether secured or unsecured payable under a decree or order of a civil Court or otherwise and subsisting at the commencement of this Act, but does not include

(i) to (iii) x x x

(iv) any rent due in respect of any property including an agricultural land let out to a debtor;

(v) any liability arising out of breach of trust or any tortious liability;

x x x

"Debtor" is defined in S. 3 (j) of the Act to mean 'an agricultural labourer, a rural artisan or a small farmer, who has borrowed or incurred any debt before the commencement of this Act'. The word 'creditor' is defined in S. 3 (h) to mean 'a person from or in respect of whom the debtor has borrowed or incurred a debt and includes his heirs, legal representatives and assigns'.

6. Yet, one another definition that requires to be noticed is the definition of mesne profits' in S. 2(12) of the Code of Civil Procedure which reads as follows:

"2 (12) 'Mesne Profits' of property means those profits which the person in wrongful possession of such 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.'

7. The Indebtedness Relief Act was enacted for giving effect to the policy of the State to promote the economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes as specified under Art. 46 of the Constitution of India. The Act is intended to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers. What dominated the mind of the Legislature is enlightened in the definition of the words 'creditor' and 'debtor' in S. 3 (h) and 3 (j). The words demand no spacious imagination or spirit of exploration. They postulate radiantly the relationship of a debtor and a creditor only when money has been lent and borrowed. Under the definition of 'debt', which includes any liability owing to a creditor in cash or in kind, any rent due in respect of any property including an agricultural land let out to a debtor is specifically excluded. A fortiori the liability of a person in wrongful possession for payment of mesne profits must be deemed to have been excluded from the definition of 'debt'. That this was the obvious intention of the Legislature is again plain from item (v) of the liabilities excluded, wherein liability arising out any tortious liability is also not included in the definition of 'debt'. In Wharton's Law Lexicon, "anything done by the wrong; an act involving a forfeiture of property". In Oxford dictionary one of the meanings given for 'tortious' is "wrongful'. In Corpus Juris Secundum 'tortious' has been defined to mean "wrongful ; of the nature of a tort' it is convertible with the term 'unlawful'". It is clear from the definition of 'mesne profits' in S. 2 of the Civil P. c. that the essence of the claim for mesne profits is wrongful possession of the property. There can be no claim for mesne profits if the possession has not been wrongful. Therefore, 'mesne profits' clearly fall within the meaning of the words 'tortious liability' excluded from the definition of 'debt' under item (v). therefore, the Court below rightly held that the debtor is not entitled to the protection of the provisions of the Andhra Pradesh Ordinance 25/76 now repealed and replaced by the Indebtedness Act, 1977. The Civil Revision Petitions must, therefore, fail. They are accordingly dismissed. No costs.

8. Revisions dismissed.

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