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Manicka Mudaliar and ors. Vs. Munilakshmammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 197 of 1970
Judge
Reported inAIR1973Mad157
ActsCode of Civil Procedure (CPC), 1908 - Sections 2, 2(2), 47 and 144 - Order 20, Rule 12
AppellantManicka Mudaliar and ors.
RespondentMunilakshmammal
Cases ReferredRajangam Aiyar v. Natesa Chettiar
Excerpt:
.....1908 - appeal against order appointing commissioner for making enquiry regarding quantum of mesne profits - clause 12 of decree provided that question of mesne profits left to be decided in separate proceedings while other matters in preliminary decree were settled under final decree - after preliminary decree no application was made for enquiry into mesne profits - parties can ask for piece meal final decree depending upon exigencies and other factors and leave other matters open to be conclusively determined - held, decree passed not complete final decree and application filed by respondent maintainable - appeal dismissed. - - ' it is well established that there can be more than one preliminary decree and one final decree depending upon the facts of each case. 8. the other..........by the subordinate judge appointing a commissioner for making enquire regarding the quantum of mesne profits payable by defendants 1 to 3.2. the plaintiff who is the respondent herein filed a suit for partition and separate possession of her 1/6th share in the suit properties. a preliminary decree was passed on 14-3-1962 declaring that the plaintiff was entitled to a 1/6th share in the suit properties. clause 6 of the preliminary decree inter alia provided that the plaintiff's share in future mesne profits would be determined in the final decree proceedings. a final decree was passed on 28-2-1964. clause 12 of the said decree provided that the question of mesne profits is left to be decided in a separate proceedings while the other matters provided under the preliminary decree were.....
Judgment:

1. This appeal has been filed by defendants 1 to 3 in O. S. No. 29 of 1959 on the file of the Sub-Court, Chingleput, against the order passed in I. A. 73 of 1969 by the Subordinate Judge appointing a Commissioner for making enquire regarding the quantum of mesne profits payable by defendants 1 to 3.

2. The plaintiff who is the respondent herein filed a suit for partition and separate possession of her 1/6th share in the suit properties. A preliminary decree was passed on 14-3-1962 declaring that the plaintiff was entitled to a 1/6th share in the suit properties. Clause 6 of the preliminary decree inter alia provided that the plaintiff's share in future mesne profits would be determined in the final decree proceedings. A final decree was passed on 28-2-1964. Clause 12 of the said decree provided that the question of mesne profits is left to be decided in a separate proceedings while the other matters provided under the preliminary decree were settled under the final decree.

3. The plaintiff filed an application under Order 20, Rule 12, C.P.C. to hold an enquiry in regard to mesne profits. This application was resisted by the defendants on the main ground that as the final decree had already been passed and the decree had become final in respect of all matters, the application for enquiry into mesne profits could not be maintained subsequent to the passing of the final decree. The contention of the defendants was negatived. Hence this appeal.

4. The same contention is reiterated by the learned counsel for the appellants before me. It is contended that after the preliminary decree was passed, which provided an enquiry into mesne profits, an enquiry should have been made and mesne profits ascertained before the final decree was passed and such ascertainment of the mesne profits should have been incorporated in the final decree, and that as this was not done, the enquiry into mesne profits subsequent to the final decree is barred and, therefore, the application is not maintainable. This contention proceeds on the footing that the decree passed by the court on 28-2-1964 is a final decree, in the sense, that it has put an end to all the matters provided under the preliminary decree or the matters in controversy in the suit.

5. The question to be considered now is whether the decree passed by the Court on 28-2-1964 has conclusively determined the rights of the parties as provided under the preliminary decree to make the decree final land complete. The definition of 'decree' is provided under Section 2, clause (2), C. P. Code. It is as follows:--

' 'decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.'

The Explanation to Section 2(2) is relevant for the present discussion and it is as follows:--

'A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

It is well established that there can be more than one preliminary decree and one final decree depending upon the facts of each case. If a particular controversy which is separable from the other controversies in a suit in conclusively determined in consonance with the preliminary decree, to that extent, a final decree may be passed; yet that final decree will be an incomplete final decree or partly final in the sense that the other controversies are left open or not conclusively determined.

6. In the decision in Kasi v. Ramanatha Chettiar, : (1947)2MLJ523 , a Division Bench of this Court observed that 'there is nothing in the Code which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree. On the other hand, there are indications that the Code contemplates more than one preliminary decree and one final executable decree in a suit'.

7. Again, in the decision Atchamma v. Rami Reddi, 1957 2 AWR 474 AIR 1957 Andh 517 a Division Bench consisting of K. Subba Rao, C. J., as he then was, and P. Jaganmohan Reddy, J. held as follows:--

'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 other, continues to be pending, there is nothing in the C. P. Code prohibiting the decree-holder from applying to the court during pendency of such suit for an enquiry into future mesne profits or the court from ordering such an enquiry.'

The learned counsel for the appellants relied upon two decisions of this court. The first is the decision of a Full Bench in Basavayya v. Guravayya, : AIR1951Mad938 . The learned counsel relies upon the following passage in that decision :

'This enquiry (enquiry into mesne profits) can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.'

This passage indicates that the result of the enquiry into mesne profits has to be incorporated in the final decree. The question in the present case in whether the decree which was passed on 28-2-1964 is a complete final decree or a decree executable in respect of all matters mentioned therein. It is seen from that decree that so far as mesne profits are concerned, it was left open and that the decree does not put an end to all the matters in controversy.

8. The other decision on which strong reliance was placed by the learned counsel for the appellants is the decision in Thyagarajan v. Sundaravelu, : AIR1972Mad216 . Raghavan, J. on the facts of that case held that 'where the final decree in a partition suit has already been passed, an enquiry into the mesne profits subsequent thereto is without jurisdiction'. The learned Judge further observed as follows:--

'As regards the mesne profits accruing from property which from part and parcel of the corpus in the partition suit there cannot be a piecemeal final decree in respect of the same item of property, one relating to the corpus and another relating to mesne profits.'

What happened in that case was that a final decree was passed in a partition suit on 31-7-1967, before the enquiry into the mesne profits was completed. After the final decree was passed, the order completing the enquiry into mesne profits was passed on 30-4-1970. It was contended that once a final decree was passed without incorporating the ascertainment of the mesne profits, the subsequent order passed in respect of mesne profits was without jurisdiction. In that case, the enquiry in mesne profits was ordered and the enquiry was going on before the final decree was passed. The learned Judge, therefore, held that the final decree should have been passed after completing the enquiry into mesne profits and the result of such enquiry must have been incorporated in the final decree. In other words, the decree which was passed on 31st July, 1967, was found to be a final decree which completed the controversies between the parties.

9. In the present case, after the preliminary decree was passed, no application was made for enquiry into mesne profits. The proceedings in respect of mesne profits was not pending. The parties appear to have agreed that the enquiry into mesne profits might be postponed and the decree has specifically provided under clause 12 that the enquiry into mesne profits was left open. The intention of the parties, as seen from the decree of the court itself, would indicate that the decree which was passed on 28-2-1964 was not a final decree, in the sense, that such decree had put an end to all the controversies in the suit.

10. The learned Judge proceeded on the footing that there cannot be a piecemeal final decree in respect of the same item of property, one relating to the corpus and another relating to mesne profits as the mesne profits accruing from the said property form part and parcel of the corpus. It is true that the mesne profits accrued from the property. It might also be true that once the mesne profits are ascertained, such mesne profits merge into the corpus. But the relief for recovery of possession and the relief for recovery of mesne profits accruing from the same property are separable. For instance, if a suit is filed for recovery of possession, but there is no prayer for recovery of past mesne profits, it is well known that in such circumstances, the court cannot give a decree for recovery of the past mesne profits. This is on the basis that the two relief, namely, recovery of possession and recovery of mesne profits accruing from the same property are separable though it may be said for one purpose that the mesne profits form part and parcel of the corpus. I am, therefore, of the review that the parties can ask for a piecemeal final decree depending upon the exigencies and other factors and leave the other matters open to be conclusively determined in a complete final decree.

11. In the decision in Rajangam Aiyar v. Natesa Chettiar, : AIR1968Mad431 , Alagiriswami, J. held as follows:--

'.......... Where the preliminary decree provides for ascertainment of profits and the final decree does not provide for mesne profits, it would be open to the court to pass another final decree after ascertainment of mesne profits. The preliminary decree having provided for ascertainment of mesne profits and its being not having provided for mesne profits, it is open to the court to ascertain it and pass another final decree.

It cannot be said that because the final decree already passed does not provide for mesne profits, the plaintiff's prayer for mesne profits should be deemed to have been refused..'

I respectfully agree with the observations made by Alagiriswami, J. in the above decision.

12. I am, therefore, of the view that the decree passed on 28-2-1964 was not a complete final decree and, therefore, the application filed by the respondent for enquiry into mesne profits was maintainable.

13. In the result, the appeal is dismissed. No costs.

14. Appeal dismissed.


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