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Arunachala Mudali and anr. Vs. Maragathammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 283 of 1952
Judge
Reported inAIR1955Mad527
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 12
AppellantArunachala Mudali and anr.
RespondentMaragathammal and anr.
Appellant AdvocateN.R. Raghavachariar, Adv.
Respondent AdvocateG.R. Jagadisan, Adv.
DispositionAppeal allowed
Cases ReferredMohd. Amin v. Vakil Ahmad
Excerpt:
.....the distribution of the profits of the properties realised pending the suit etc. future mesne profits could we think well be awarded as part of the general relief to which a plaintiff is entitled. i am of opinion that the decision in air 1947 mad 109 (a) is still good law and also correctly understand the scope of the amendment introduced in madras to the civil procedure code. i am clearly of the opinion that the amendment is directed to the stage before the final decree in the suit emerges and is not to be called in aid in order to reopen a decree which has become, final. it might very well be that in the light of this judgment the question of the power of a court to give directions under order 20, rule 12 when there was no prayer in the plaint for such a relief might have to..........for the relief of possession of the suit property but contained no prayer for past or future mesne profits. the trial court granted a decree for the relief of possession and this was affirmed in appeal filed by the defendants to the subordinate judge of vellore and finally to this court in second appeal. the second appeal to this court was dismissed on 14-2-1950. while the second appeal was pending here the plaintiffs filed in the trial court (district munsifs court, vellore) i. a. no. 840 of 1949 purporting to be under order 20 rule 12, c. p. c., and praying for a direction to hold an enquiry to ascertain the mesne profits subsequent to the plaint and pass a decree after ascertaining the quantum of profits payable to them. this application was opposed say the defendants on the.....
Judgment:

Rajagopala Ayyangar, J.

1. This is an appeal against an order of remand passed by the learned Subordinate Judge of Vellore. The facts necessary to understand the points raised for consideration in this Court are these: The plaintiffs who are the respondents in this appeal brought a 'suit O. S. No. 253 of 1938 in the District Munsif's Court of Tirupattur which was transferred finally to the District Munsif's Court of Vellore and numbered there as p. S. No. 241 of 1945 for the recovery of possession of three items of immoveable properly set out in Seh. B to the plaint. The suit was filed on 28-3-1938. The plaint as filed prayed for the relief of possession of the suit property but contained no prayer for past or future mesne profits. The trial Court granted a decree for the relief of possession and this was affirmed in appeal filed by the defendants to the Subordinate Judge of Vellore and finally to this Court in second appeal. The second appeal to this Court was dismissed on 14-2-1950.

While the second appeal was pending here the plaintiffs filed in the trial Court (District Munsifs Court, Vellore) I. A. No. 840 of 1949 purporting to be under Order 20 Rule 12, C. P. C., and praying for a direction to hold an enquiry to ascertain the mesne profits subsequent to the plaint and pass a decree after ascertaining the quantum of profits payable to them. This application was opposed say the defendants on the ground that as there had been no prayer in the plaint as originally filed praying for directions for ascertainment of mesne profits and the decree contained no such relief, the plaintiffs were disentitled by 'res judicata' and also by the terms of Order 20 Rule 12, C. P. C., from making the said application. It might be mentioned that in pursuance of the decree directing delivery of possession to the plaintiffs of the properties the recovery of which was sought, the plaintiffs obtained possession on 1-8-1948.

2. The learned District Munsif held that as the plaintiffs had not originally in their plaint prayed for this relief namely a direction in the decree for the ascertainment of mesne profits subsequent to the plaint, and as the decree did not afford them any such relief, Order 20 Rule 12, C. P. C., was inapplicable to the case and dismissed the plaintiffs' application. The learned District Munsif in reaching this conclusion held that the decision of this Court reported in -- 'Atchayya v. Appalaraju AIR 1947 Mad 109 (A), bound him and was a clear authority for the position that the petition was not maintainable.

3. From this order of the learned District Munsif, the plaintiffs preferred an appeal to the Subordinate Judge of Vellore and that Court reversed the decision of the trial Court and held that .certain observations in a decision of a Full Bench of this Court reported in -- 'Basavayya v. Guravayya', : AIR1951Mad938 (B), should be treated as having overruled AIR 1947 Mad 109 (A)', on which the learned District Munsif had based his order. Holding that the application was maintainable the learned Subordinate Judge remanded the application to the trial Court for disposal according to law. It is this order of remand that is challenged before me as incorrect and not in accordance with law by the learned counsel for the defendants-appellants.

4. Before considering the relevant decisions on the point raised, which are not many, it might be useful to set out the terms of Order 20 Rule 12, C. P. C. under which this I. A. No. 840 of 1949 was filed. It runs as follows:

'12(1) Where a suit is for the recovery of possession of immoveable property and for rent or 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 a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until

(i) the delivery of possession to the decree holder.

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree whichever event first occurs.

(2) Where an enquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

(3) Where an appellate Court directs such an inquiry it may direct the Court of first instance to make the inquiry; and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree-holder, inquire and pass the final decree.'

It is thus seen that to attract the operation of this provision the suit must be one for the recovery of possession of immoveable property and for rent or mesne profits. It is only in such a case that the Court would have the power to direct under Sub-clause (1) an enquiry as to the rent or mesne profits from the institution of the suit. On the terms of the rule it would appear that there must be a prayer in the plaint itself in order to justify or empower the Court dealing with the suit to pass an order directing an enquiry into future profits. I shall subsequently consider the purpose and effect of Sub-rule (3) which has been added in Madras.

5. I may at this stage refer to the history of this provision which throws some light on the point arising for decision. Before the Civil Procedure Code of 1908, proceedings for the ascertainment of profits were started by the executing Court in execution of the decree. At that stage it would be clear that unless a decree passed in the suit contained a specific provision directing an enquiry, the executing Court would be powerless to conduct an enquiry or grant to the plaintiff any relief which had not been granted or had not been denied to him by the decree. Under the Civil Procedure Code, therefore, before 1908 not merely had the plaintiff to pray for the relief but the relief had to be granted to him before the executing Court would have jurisdiction to start an enquiry as to the quantum of future mesne profits and grant to the plaintiff a relief in regard to it.

It is no doubt true that there is a sharp distinction between the right to past profits and that to profits accruing after the date of the suit. For in the first case the cause of action for the relief of past profits should have accrued prior to the date of the suit and had to be the subject-matter of prayer and court-fee would have to be paid on that before a decree could be passed. On the other hand, in respect of future profits that is after the date of the plaint, the cause of action for the same would not arise on the date of the suit. The basis of the relief was really the delay on the part of the Court in adjudicating upon the plaintiff's claim and his obtaining possession of the property title to which the Court finally upholds by its decree. That is why under the Court-fees Act no court-fee is payable on the prayer for future mesne profits but it is payable only after the same is ascertained and before the decree in respect of it is executed.

But so far as the present point is concerned, I do not consider that it makes any difference in the necessity for a prayer for the one relief as distinct from the other. In either case, the executing Court would have had no jurisdiction to give any relief to a decree-holder who did not obtain any direction in the decree in regard to it.

6. This was the law which applied when the right to mesne profits was being determined in execution. The Code of 1908 made a procedural change by rendering the ascertainment of mesne profits a proceeding in the suit itself. For this purpose when in a particular case a relief for profits past or future had been prayed for, the Court trying the suit is empowered by Order 20, Rule 12 to pass in the first instance a decree for possession simpliciter that is something in the nature of a preliminary or part decree and reserving for future consideration and for final decree the relief for mesne profits. In regard to past profits when the matter is not very complicated and the evidence adduced at the trial is sufficient to enable the Court to determine its quantum, it will be open to the Court to pass a decree straightway without a further enquiry and a supplementary decree. But in regard to future profits there would not be sufficient material for the Court to determine the profits which would arise after the date of the suit till the delivery of the possession of the property and consequently Sub-clause (1) (c) enables the Court to pass a decree directing an enquiry in regard to future profits.

7. The question is whether a Court has jurisdiction to direct an enquiry when there is no prayer in the plaint and when the decree itself contains no direction in this regard. To start with, it may be mentioned that Order 20 Rule 12 docs not enable the Court to reopen a decreed, that is it does not embody a power of review. The enquiry that must be directed is one which is so done under a decree of the Court and when once a suit has reached finality by the decree becoming final, it will be no longer open to the Court to reopen and afford relief to the plaintiff which he might have asked for at an earlier stage but which he did not do so. In this connection reference may be made to the decision of this Court reported in AIR 1947 Mad 109 (A)', on which the judgment of the learned District Munsif was rested.

The suit there was to recover possession of a site and in the plaint there was a prayer for recovery of possession and past profits. But there was no claim for mesne profits after the, suit and the decree did not contain any direction in regard to it. Long subsequently the decree-holder applied under Order 20 Rule 12 for an order for the ascertainment of subsequent mesne profits and for a final decree regarding the amount so ascertained. But the defendant resisted the application on the ground that the decree which had become final did not contain any direction as regards the future -profits. The District Munsif before whom the application came on in the first instance dismissed it on the ground that it was mis-conceived inasmuch as there was no direction in the decree. The Subordinate Judge, however, on appeal held the petition to be maintainable and remanded it to the lower Court for fresh disposal, An appeal was filed to this Court against the order of remand.

The case came on before Charidrasekhara Aiyar J., and reliance was placed upon the Madras amendment introducing Sub-clause (3) to the rule as effecting a fundamental change which was sufficient to enable the Court to pass, an order prayed for by the applicant. Dealing with the Madras amendment the learned Judge observed:

'The Madras Amendment, as it was introduced in 1911 and as it Was further amended in 1941, merely provides for the procedure to be adopted in ascertaining the mesne profits. It does not say, that when there was no claim for future mesne,--profits in the suit and the decree therefore did not award any, still the Court, can on an application proceed to ascertain such mesne profits and pass a final decree. For a final decree there must be a preliminary decree, and the preliminary must say something which the final decree is to carry into effect. Where the preliminary decree awards no future mesne profits, there can be no final decree awarding the same.

The amendment introduced to prescribe the procedure to be adopted in such cases -- whether the enquiry was to be held by the appellate court itself or was to be held by the first Court and whether the enquiry was to be on the application of the. decree-holder or otherwise has nothing whatever to do with the question whether any relief could be granted later by a Court in a suit; which has fructified into a decree and which does not award such relief ......... .......... .....

The decree must direct the enquiry. Formerly, the question of mesne profits was relegated to the stage of execution. Now it has to be done in the suit itself. Even in a case where the relief is claimed but the decree is silent, the relief must be deemed to have been refused. Here we have a case where there was no claim put forward at all for future mesne profits.'

8. Holding the petition not maintainable, the learned Judge allowed the appeal and dismissed the petition. Subsequent to this decision the matter came up before the Full Bench whose decision is reported in ' : AIR1951Mad938 (B)'. The case before the Full Bench related not to Order 20, Rule 12 but Order 20 Rule 18 dealing with preliminary and final decrees in suits for partition. The question there was whether if the preliminary decree in a partition suit did not grant any relief to the parties by way of profits subsequent to the date of the suit, the final decree for partition could include such relief. The ratio of the decision as set out in the head note in the Madras Law Journal was this:

'A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. The preliminary decree determines only the moieties of the respective parties and there are other matters like the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit etc., which have to be considered and decided before an equitable final partition can be effected. Even after the passing of the preliminary decree it is Open to the Court to give appropriate directions regarding all or any of these matters 'suo motu' ob on the application, of the parties. Order 20 Rule 18, C. P. C., does not prohibit the Court from issuing such directions after the stage of a preliminary decree. The claim of a plaintiff suing for partition and his share of the profits accruing from the lands pending suit is not, properly speaking a claim for 'mesne profits' and Order 20 Rule 12, C. P. C., has no application to such a case.'

The Full Bench was constituted to consider the correctness of the decision in -- 'Gulusam Bivi' v. Ahmadsa Rowther', AIR 1919 Mad 998 (C) in which it had been held that if a preliminary decree in a partition suit either intentionally or inadvertently omitted to direct an enquiry into future profits, a subsequent application for directing such an enquiry was incompetent and that the Court had no power to pass a final decree awarding such profits. Though the case before the Pull Bench, as stated before, related to the proper construction of Order 20, Rule 18 the position under Order 20, Rule 12, C. P. C. also was dealt with incidentally by reason of the decision in AIR 1919 Mad 998 (C) making a reference to these provisions and applying its terms to the consideration of the question raised by Order 20, Rule 18, C. P. C. In the judgment of the Full Bench which was delivered by Viswanatha Sastri J. three different types of cases were considered.

The first related to suits for ejectment or recovery of possession of immovable property from a person in possession without title together with a claim for past or past and future mesne profits. The second related to suits for partition by one or more tenants-in-common against others a claim for accounts. The third related to suits for partition by a member of a joint Hindu family with a claim for an account against the manager. It will bo seen, that the first type of cases dealt with would have relevance for the decision in this appeal. Dealing with this provision and this type of suits, the learned Judge drew a distinction between the claim for future profits and past profits and stated that while the right to past profits was a matter of right, the power of the Court to award mesne profits subsequent to the suit was discretionary and that a mere omission as distinct from a refusal to grant future mesne profits was not a bar to a fresh suit for this relief.

It was also pointed out that notwithstanding there had been no prayer in a plaint for future profits if the decree in the suit granted the said relief to the plaintiff, the decree could not subsequently be attacked as a nullity and for this purpose reference was made to the decision of a Bench of this Court in - Kemgam Swami v. Subbamma', AIR 1930 Mad 30 (D). The next point considered was whether the power to direct an enquiry into future profits could be exercised only at the stage when the preliminary decree for possession was passed or whether it could be done at a later stage of the suit. It was pointed out that there could be more than one preliminary decree in a suit and that mere fact that a preliminary decree for possession was passed was no bar to a Court passing a further preliminary decree. The matter was summed up in these terms:

'If a _ preliminary decree awarding possession contains a direction for enquiry into future mesne profits the suit or that part of the suit relating to future mesne profits continues to be pending and the decree-holder might move the Court to hold an enquiry and pass a filial decree awarding such profits without the necessity for filing an application within the period prescribed by Art, 181, Limitation Act ...... Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which for one reason or another continues to be pending there is nothing in the Civil Procedure Code prohibiting the decree-holder from applying to the Court (luring the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the decree-holder to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree. ......

In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit cannot be said to be without jurisdiction. 'Further' when the Legislature has expressly empowered the Court to grant relief for future profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason, to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such un ascertain able and unpredictable profits. Future mesne profits could we think well be awarded as part of the general relief to which a plaintiff is entitled.'

9. These are all the observations to be found in the Full Bench decision bearing on the proper scope of Order 20, Rule 12, C, P. C. I understand these observations to mean that notwithstanding the want of prayer in a plaint regarding future profits, it would be open to the Court so long as the suit is pending before it to direct an enquiry into mesne profits. In any event if such an enquiry were directed and a final decree passed the same could not be attacked at the stage of execution of such a final decree. I do not regard these observations as deciding that when there is no prayer in a plaint and no decree is passed directing an enquiry into mesne profits and the decree passed by the Court awarding possession simpliciter without any direction for the ascertainment of mesne profits has become final it will be open to decree-holder to revive the suit by making an application under Order 20, Rule 12, C. P. C. So understood I do not regard the Full Bench as having overruled the judgment of Chandrasekhara Aiyar J. in AIR 1947 Mad 109 (A). It might be that the learned Judge followed the decision in AIR 1919 Mad 998 (C) which was overruled by the Full Bench as to the proper construction of Order 20, Rule 18 but that can be no reason why his decision, on the construction of Order 20, Rule 12 should be treated as inconsistent with the Full Bench decision. I am of opinion that the decision in AIR 1947 Mad 109 (A) is still good law and also correctly understand the scope of the amendment introduced in Madras to the Civil Procedure Code.

10. The next question is whether the amendment effected in Madras makes any change in the law_ asset out by me earlier. I am clearly of the opinion that the amendment is directed to the stage before the final decree in the suit emerges and is not to be called in aid in order to reopen a decree which has become, final. I am consequently of the opinion that the decision of the learned District Munsif in regard to the present case was right and that I. A. No. 840 of 1949 was probably dismissed.

11. It Only remains for me to add that the Supreme Court has recently held in -- 'Mohd. Amin v. Vakil Ahmad', : [1952]1SCR1133 (E) that a Court would not he justified in awarding mesne profits, when there was no prayer for the same in the plaint a view which would throw doubt on the observations in the Full Bench decision extracted above No doubt the cases on the point are not considered.

But the decision of the Court is clear and emphatic. It is stated there at p. 362:

'It was however pointed out by Sri S. P, Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto.' We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to mesne profits will therefore have to be deleted from the decree.'

12. Before the Supreme Court the matter arose not after the decree had become final as in the present case but at hearing on the point whether the decree was correctly passed or not These observations therefore apply 'a fortiori' to the present case. It might very well be that in the light of this judgment the question of the power of a Court to give directions under Order 20, Rule 12 when there was no prayer in the plaint for such a relief might have to be reconsidered. But in the present case it is unnecessary to pursue this point because the decree in the suit did not award to the plaintiff a relief for future profits. This is sought to be added, so to speak, by reopening the decree and getting a modified or supplemental decree being passed. In view of the decision of the Supreme Court it would not be open to the Court to pass such an order.

13. In the result, the appeal is allowed and I. A.No. 840 of 1949 in O. S. No- 241 of 1945 on thefile of the District Munsif's Court, Vellore, is dismissed with costs throughout. No leave.


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