Judgment :- 1. The short question that tails for consideration in this Second Appeal, in execution, is whether a decree for mesne profits is a debt within the meaning of Act 11 of 1970. The courts below concurrently found it to be a debt. It is this finding that is challenged in this Second Appeal. There were other contentions before the courts below. I am not concerned with those contentions in this Second Appeal. 2. In execution of the decree in O. S.304 of 1117, a property which belonged to the judgment-debtor, was sold. He filed a petition to set aside the sale under S.20 of Act 11 of 1970, which enabled an agriculturist whose property was sold in execution of a decree for recovery of a debt, to apply to set aside the sale on making certain deposits. The sale took place on 9111961. Delivery was taken immediately after the sale. The application was allowed by the courts below. The soundness of the reasoning in the orders passed by the courts below is challenged by the counter-petitioners in E. A. 49/1971 in this Second Appeal. The appellant before me is the purchaser from the auction purchaser. 3. The contention that a decree for mesne profits is not a debt is based on the definition of 'debt' in Sec ion 2(4) (c) of Act 11 or 1970. This sub-clause excludes from the definition of debt any "liability arising out of a breach of trust or any tortious liability". According to the counsel for the appellant, the respondent should be deemed to be in wrongful possession, and the accrual of profits in his hands is wrongful. He is liable in tort for the said amount. Such amount cannot come within the definition of 'debt', since it is expressly excluded from the definition, by the above exemption clause. The predecessor Act, Act XXXI of 1958, did not contain a similar exemption clause. The exemption Clause.2(c) (iii) read as: "any liability arising out of a breach of trust". The counsel for the appellant would therefore contend that the legislature deliberately intended to exclude tortious liability, which was more exhaustive than the exemption clause contained in Act XXXI of 1958. In the earlier Act, all that was excluded in this group, was liability arising out of a breach of trust. The counsel for the appellant would therefore contend that the legislature deliberately intended to exclude tortious liability, which was more exhaustive than the exemption clause contained in Act XXXI of 1958. In the earlier Act, all that was excluded in this group, was liability arising out of a breach of trust. Basing the argument on this definition, it was contended that the authorities which interpreted the provisions of the earlier Act, could not be made applicable to the present Act. 4. Mariyumma v. Thresiamma (1959 KLR. 944: 1959 KLT. 989) is a Division Bench case. There the question that pointedly arose, related to the fact whether a decree for mesne profits is a debt or not. Sankaran C. J. held that the liability for mesne profits did not fall under the exclusion provided in S.2(c) (iii) of Act XXXI of 1958. In that case the plaintiff and the 1st defendant were co-owners in respect of the suit properties. The 1st defendant was in possession of the entire properties. She was answerable to the plaintiff for the profits due from the plaintiff's share. The learned judge held that the liability did notarise on account of any fiduciary relationship simply because they were co-owners. It was on this basis that it was held that the decree for mesne profits was a debt since there was no question of breach of trust. 5. The second case also related to the earlier Act. Anna Chandy, J. who was a party to the earlier Division Bench case held in Gayathrikutty Amma v. Bhaskaran Nair (1961 KLT 713) that though mesne profits is in the nature of damages, it cannot be said that the liability to pay mesne profits in a partition suit, is a liability for breach of trust. The liability to pay profits gets crystallised only when the court finally finds title in favour of the party in whose favour the decree for mesne profits is passed. There also it was held that the decree for mesne profits did not come within the exemption clause. 6. The next case is reported in Kunjipathumma v. Assu (1962 KLT. 211) where Raghavan J., as he then was, also considered the identical question. The learned judge referred to the Division Bench case and adopted the reasoning thereof and held that a decree for mesne profits is a debt as defined in Act XXXI of 1958. 7. 6. The next case is reported in Kunjipathumma v. Assu (1962 KLT. 211) where Raghavan J., as he then was, also considered the identical question. The learned judge referred to the Division Bench case and adopted the reasoning thereof and held that a decree for mesne profits is a debt as defined in Act XXXI of 1958. 7. If these precedents are authorities for the position that a decree for mesne profits is a debt, then the appeal is to be automatically dismissed. But before doing so,1 have to examine whether the principles enunciated in the above decisions, can be used so far as the new Act is concerned. I agree that the new Act contains the additional words "any tortious liability". The question therefore for consideration is, whether there is any element of tort, where a person in possession comes by profits which ultimately is found to be not profits which he could legitimately appropriate. The matter is not free from doubt. It cannot be said that in all cases where there is a decree for mesne profits, the liability is a debt. In other words, the liability to pay mesne profits in certain cases may assume the character of a tortious liability, but not as a general rule. Mesne profits is defined in the Civil Procedure Code 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:" From this definition it is clear that to claim mesne profits, the person against whom a decree is passed, must be found to be in wrongful possession. The expression "wrongful possession" has to be strictly interpreted, since this expression if taken in its widest import, might support the appellant's contention. A wide interpretation has therefore to be avoided in considering the word"wrongful possession". I find it difficult to give any precise definition to the word "tort". Evolution of the word 'tort' as a legal term, had its own jurisprudential aspect. Although it may be easy to differentiate tort from crime, it is not easy to define tort. I therefore do not venture to attempt a definition of this word, since I find unequal to the task. Evolution of the word 'tort' as a legal term, had its own jurisprudential aspect. Although it may be easy to differentiate tort from crime, it is not easy to define tort. I therefore do not venture to attempt a definition of this word, since I find unequal to the task. I do not want to rush where greater men feared to tread. However, even without defining the word 'tort', one can easily express oneself as to what is meant by a tortious liability. As I mentioned earlier, in all cases of decree for mesne profits, one cannot positively say that they are debts. There may be cases of rank trespassers on the property, from whom a plaintiff has to get mesne profits. All acts of trespass constitute, a tort and sometimes a crime. But all 'wrongful possession' in civil law need not be by trespass. A decree for mesne profits in cases of blatant and rank trespass will constitute a tortious liability. There may be cases contra also. In cases where one of the co-owners is in exclusive possession of the properties belonging to more than one co-owner, or where one member is in possession of a property belonging to the joint family or even where a person is in possession of a property bona fide believing himself to be the owner thereof, a decree for mesne profits against such persons will not automatically assume the character of a tortious liability. The liability to pay profits in such cases gets quantified and crystallised only when the title is found in favour of the party who is entitled to the profits. Mesne profits in such cases are only damages. In assessing damages the court will naturally be influenced by the defendant's conduct. Even in the case of trespassers, the courts will treat a bona fide trespasser more considerately than a wilful and wanton one. In Girish Chander Lahiri v. Shoshi Shikhareswar Roy (ILR 27 Cal. 951) the Judicial Committee of the Privy Council observed: "Mesne profits are in the nature of damages which the court may mould according to the justice of the case." 8. Now coming to this case, it is said, though I do not have the original papers before me, that the 5th defendant came into possession by virtue of a court sale. He continued in possession thus. Now coming to this case, it is said, though I do not have the original papers before me, that the 5th defendant came into possession by virtue of a court sale. He continued in possession thus. It cannot be said that his possession was wrongful to start with to constitute an actionable wrong. Of course it was found in the suit that the sale in his favour was not valid. Several considerations must have prevailed with the court in coming to the conclusion that the sale in his favour was not valid. On that score, it cannot be said that his coming into possession was wrongful, his continuing in possession a tortious act, and his liability to pay mesne profits a tortious liability. 9. I want to confine myself, while deciding this case, to the particular facts of this case. I hold with reference to the facts of this case that the decree for mesne profits in this case does not come within the exemption 'tortious liability'. I concur with the courts below that it is a debt. 10. In my judgment therefore the Second Appeal is to be dismissed and I do so. However, I direct the parties to bear costs. Dismissed.