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Sadabai and anr. Vs. A. Nivrutti Vithoba Takale and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 789 of 1974
Judge
Reported inAIR1979Bom29; (1978)80BOMLR422; 1979MhLJ55
ActsCode of Civil Procedure (CPC), 1908 - Order 20, Rule 12 and 12(1)
AppellantSadabai and anr.
RespondentA. Nivrutti Vithoba Takale and ors.
Appellant AdvocateM.L. Apte, Adv. for M.L. Dudhat, Adv.
Respondent AdvocateV.V. Divekar, Adv.
DispositionAppeal allowed
Excerpt:
.....rule 12 as amended by bombay high court - whether appellants-decree holders entitled to recover mesne profits from the date of the suit to the date of the decree.;in the amended rule, there is no restriction of three years, which was to be found in the earlier order xx, rule 12(c)(iii). the rule is only a procedural rule and must be held to be in force retrospectively.;subbunna v. subbanna [1965] a.i.r. s.c. 1325, distinguished.;the high court had the rule making power to amend the rule and amend it retrospectively notwithstanding the decision of the supreme court in subbanna v. subbanna while interpreting the unamended rule. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several..........in the above second appeal, is whether the appellants-decree-holders were entitled to recover mesne profits from the date of the suit (april 25, 1957) to the date of the decree (march 28, 1963), which was negatived by the iind extra assistant judge, ahmednagar, on january 15, 1974, confirming an order passed by the civil judge, junior division, karjat, on july 8, 1971, in miscellaneous application no. 1 of 1967, filed by the appellants for determining the mesne profits under the decree.2. the two courts below purported to follow the decision of the supreme court in c. subanna v. k. subanna, : [1965]2scr661 , where it was laid down that order 20, rule 12, does not empower a court to direct an enquiry and pass a final decree with respect to mesne profits for a period exceeding three.....
Judgment:

1. The short point arising in the above second Appeal, is whether the appellants-decree-holders were entitled to recover mesne profits from the date of the suit (April 25, 1957) to the date of the decree (March 28, 1963), which was negatived by the IInd Extra Assistant Judge, Ahmednagar, on January 15, 1974, confirming an order passed by the Civil Judge, Junior Division, Karjat, on July 8, 1971, in Miscellaneous Application No. 1 of 1967, filed by the appellants for determining the mesne profits under the decree.

2. The two Courts below purported to follow the decision of the Supreme Court in C. Subanna v. K. Subanna, : [1965]2SCR661 , where it was laid down that Order 20, Rule 12, does not empower a Court to direct an enquiry and pass a final decree with respect to mesne profits for a period exceeding three years from the date of decree.

3. The Rule was thereafter amended by this Court on November l, 1966; and Order 20, Rule 12, so far as this Court is concerned, reads as follows :--

'12. Decree for possession and mesne profits :--

(1) Where a suit is for the recovery of possession of immovable property and for rentor mesne profits, the Court may pass a decree-

(a) for the possession of the property;

(b) for the rent or mesne profits which have accrued on the property during the period prior to the institution of the suit, or directing an enquiry as to such rent or mesne profits;

(c) directing an enquiry as to rent or mesne profits from the institution of the suit until--(i) the delivery of possession to the decree-holder, or (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court.

(2) Where an inquiry is directed under Clause (b) or Clause (c) of Sub-rule (1) above, a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.' It is clear in the Rule as amended, there is; no restriction of three years, which was to found in the earlier Order 20 Rule 12 (1) (c) (iii).

4. The rule is only a procedural rule and must be held to be in force retrospectively. Both the Courts below erred in law in not awarding mesne profits at the rate of Rupees 1000/- per year from April 25, 1957, to March 28, 1963. It was urged on behalf of the judgment-debtors that as the rule was enacted by this Court subsequent to the decree, the two Courts awarded in accordance with the interpretation of the Supreme Court and hence, it cannot be said that the two Courts erred in law. It was submitted that the rule was not merely a procedural rule but was enacted to enlarge the rights of the decree-holders, and therefore, it cannot be given retrospective effect.

5. The contention must be rejected because the power of the executing Court, which is regulated by Order 20 Rule 12, is a matter of merely procedural power, in the execution of the decree which is passed. The decree had already vested the rights in the decree-holders. Moreover, the High Court had the rule making power to amend the rule and even amend it retrospectively notwithstanding the decision of the Supreme Court, while interpreting the unamended rule.

6. Once that power of amendment was exercised by the High Court, the amended rule must be interpreted and applied; and it must be held that the High Court was conscious that the Executing Courts will be Executing decrees which were passed earlier than when the rule was enacted; and the High Court intended to vest these powers in the executing Courts to prevent unnecessary litigation about the same. In my opinion, therefore, the lower Courts erred in not giving retrospective effect to the amendment made by the High Court in Order 20 Rule 12.

7. It was then urged} on behalf of the judgment-debtors-respondents, that the decree in the present case did not award specifically mesne profits from the date of the suit; and that the decree had merely awarded mesne profits from the date of the decree as it refers to only

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