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Palanivel Pillai Vs. Sivakolundu Odayar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1977)2MLJ65
AppellantPalanivel Pillai
RespondentSivakolundu Odayar and ors.
Cases ReferredThyagarajan v. Sundaravelu
Excerpt:
.....raised is rather interesting. sivamani's contention is that in the absence of a provision in the final decree regarding mesne profits, its ascertainment and evaluation, no application under order 20, rule 12 could be filed at all at any time thereafter to secure such an enquiry and to enjoy the resultant fruits therefrom. it is not disputed before me that in a case like the one under review and in other similar cases wherein possession coupled with the grant of mesne profits is granted in a preliminary decree, there need not be one final decree but more than one and in one of which the decree-holder can seek for such ascertainment of mesne profits and for the grant of the ascertained mesne profits. 383: now a suit for possession as well as mesne profits, may be taken to be a suit for..........the preliminary decree, it is conceded that there was a direction regarding the ascertainment of mesne profits as provided for under order 20, rule 12, code of civil procedure. but when the matter was pursued further for obtaining a final decree and when indeed a final decree was secured by the party, no provision was made therein for the determination of the mesne profits in accordance with law. the final decree was passed on 14th august, 1968. this was silent about such determination of mesne profits. the properties were, however, delivered by the first defendant acting in pursuance of court proceedings, on 11th july, 1970. the first defendant, however, was not called upon till then to account for the mesne profits of the suit property which was in his possession during the pendency.....
Judgment:

T. Ramaprasada Rao, J.

1. The first defendant in a partition action aggrieved by an order made by the District Munsif of Tirukoilur under Order 20, Rule 12, Code of Civil Procedure, for the determination of mesne profits in the main suit, has come up to this Court. It is common ground that a preliminary, decree for partition was passed on 24th July, 1961. But the matter was taken up further to the first and the second appellate Courts and ultimately by a decree of this Court dated 26th September, 1967 the judgment of the trial Court was upheld. In the preliminary decree, it is conceded that there was a direction regarding the ascertainment of mesne profits as provided for under Order 20, Rule 12, Code of Civil Procedure. But when the matter was pursued further for obtaining a final decree and when indeed a final decree was secured by the party, no provision was made therein for the determination of the mesne profits in accordance with law. The final decree was passed on 14th August, 1968. This was silent about such determination of mesne profits. The properties were, however, delivered by the first defendant acting in pursuance of Court proceedings, on 11th July, 1970. The first defendant, however, was not Called upon till then to account for the mesne profits of the suit property which was in his possession during the pendency of the suit and until it was delivered back to the persons entitled thereto. In or about June, 1973 the present application under Order 20, Rule 12, Civil Procedure Code, was filed by the respondents for the determination of the mesne profits from 11th July, 1960 which is the date of presentation of the plaint in the action until 11th July, 1970 which was the date when admittedly the petitioner had first delivered possession of the property to the respondents. The application was resisted by the petitioner on the ground that the application is beyond time. There was also another contention that the final decree proceedings not having incorporated the clause regarding ascertainment of mesne profits, there could not be an enquiry into such mesne profits after the passing of a final decree which is silent about it. The learned District Munsif did not agree with the petitioner and he directed an enquiry as prayed for. It is as against this, the present Civil Revision Petition has been filed.

2. Mr. N. Sivamani, learned Counsel for the petitioner relying upon a decision of this Court in Thyagarajan v. Sundaravelu : AIR1972Mad216 , contended that the enquiry regarding mesne profits must in every case be concluded before the final decree is passed to enable the Court which passes the final decree to incorporate the same in it, and that not having been done in the instant case, the lower Court was wrong in having directed such an investigation. He would also rely upon the observations of the Supreme Court in Subbama v. Subbabba : [1965]2SCR661 . Another contention that there could not be a direction for ascertainment of mesne profits beyond three years from the date of the appellate decree is pressed into service. The learned Counsel for the respondents, however argues to the contrary.

3. Ascertainment of mesne profits in actions in which it is possible is a matter which is solely guided by the guidelines set in Order 20, Rule 12, Civil Procedure Code. There is no escapement out of it, as this is almost a prescriptive mandate and courts cannot make inroads into it by seeking to otherwise interpret the specific and unambiguous provision. Order 20, Rule 12 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 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 inquiry is directed under Clause (5) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of the inquiry.

(3) Where an Appellate Court directs such an enquiry, 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.

4. We are here concerned with Order 20, Rule 12(c). In a case where possession of immovable property is sought and contemporaneously a decree for rent or mesne profits, the Court may pass a decree directing an enquiry as to rent or mesne profits from the date of the institution of the suit until delivery of possession or the expiry of three years from the date of the decree, whichever event first occurs. Obviously, one of the events referred to in Order 20, Rule 12(c)(1) is the event of delivery of possession of the property to the decree-holder. The language is so plain and clear that the meaning cannot escape normal understanding. It means that an enquiry as to rent and mesne profits can be made by the competent Court for a period commencing from the date of the institution of the suit till the expiry of three years from the date of the decree. The decree referred to may be a decree of the trial Court, may be of the first appellate Court or may be of the second appellate Court or a decree of a Court in the higher hierarchy as well. Obviously, the word 'decree' has to be interpreted as the decree which has become final in the eye of law and in accordance with the procedure available in our country. It is not in dispute that such a decree was passed by the High Court on 26th September, 1967. Therefore an enquiry into such mesne profits could be made for the period commencing from 11th July, 1960 the date of institution of the suit, till 26th September, 1970. But in this case, the event referred to in Sub-clause (iii) of Order 20, Rule 12, Civil Procedure Code, has occurred. This is because the decree-holder has obtained possession of the property through Court. That event having occurred first, the period of investigation should necessarily be restricted to the period commencing from the date of institution of the suit till the date of delivery of possession. I am unable to agree with the contention of the learned Counsel for the petitioner that the period of enquiry should stop at any time earlier than 11th July, 1970.

5. The other question raised is rather interesting. Mr. Sivamani's contention is that in the absence of a provision in the final decree regarding mesne profits, its ascertainment and evaluation, no application under Order 20, Rule 12 could be filed at all at any time thereafter to secure such an enquiry and to enjoy the resultant fruits therefrom. Of course, he gains support from an observation of Raghavan, J., made in Thyagarajan v. Sundaravelu : AIR1972Mad216 . In my view, the observation of the learned Judge occurring at page 233 of the citation is torn out of the context by the learned Counsel. It is not clear as to what the learned Judge had in mind, for, he has in my view correctly summarised the propositions which resulted from a survey of the various decisions of our High Court and that of the Supreme Court. The first proposition to which Raghavan, J., was a party and as quoted by him is as follows:

Where a preliminary decree awarding possession contains a direction for enquiry into the future profits, that part of the suit relating to the mesne profits continues, to be pending and the decree-holder might move the Court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an application within the prescribed period under Article 181 of the Limitation Act.

Having said this the later observation of the learned Judge that in every case, the enquiry must be concluded before the final decree is passed, must obviously be taken to apply to the facts of that case and not as a proposition laid down for universal application. That this is so is clear from the various other decisions of our Court. Even otherwise the matter is simple. It is not disputed before me that in a case like the one under review and in other similar cases wherein possession coupled with the grant of mesne profits is granted in a preliminary decree, there need not be one final decree but more than one and in one of which the decree-holder can seek for Such ascertainment of mesne profits and for the grant of the ascertained mesne profits. That this is possible is clear from the observation of a Division Bench of this Court in Mohammed Hussain v. Ganga Naicken (1961) 2 M.L.J. 321 : I.L.R. (1961) Mad. 834 : 74 L.W. 443 : A.I.R. 1962 Mad. 264. Rajamannar, CJ., speaking for the Bench quoted the following observation of the Calcutta High Court in Satish Chandra v. Sarat Kamini Desi A.I.R. 1929 Cal. 383:

Now a suit for possession as well as mesne profits, may be taken to be a suit for two claims joined together for which two separate suits may be brought. When a decree is made for possession, that portion of the decree is final and when a decree is made for mesne profits in that suit, it is only preliminary, because the final decree for mesne profits cannot be made unless the amount due is found upon further enquiry. Therefore further proceedings have to be taken for ascertaining the amount due for mesne profits, before the claim for mesne profits can be completely disposed of.

No more clear statement of law is necessary to discountenance the contentions of the learned Counsel for the petitioner.

6. Alagiriswami, J., in Rajangam Ayyar v. Natesa Chettiar : AIR1968Mad431 , prior to the decision rendered by Raghavan, J., in Thyagarajan v. Sundaravelu : AIR1972Mad216 , has made this position clear. The head note of the decision is as Follows:

It is well settled that there can be more than one preliminary decree and more than one final decree. Unless the plaintiff' prayer for mesne profits had been specifically considered and refused, it was open to the Court to entertain a subsequent application for mesne profits, after the passing of the preliminary decree and before the passing of the final decree. Where the preliminary decree provides for mesne 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. A suit cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. The preliminary decree having provided for ascertainment of mesne profits and the final decree not having provided for mesne profits, it is open to the Court to ascertain it and pass another final decree.

There is therefore abundant and binding authority on me to say that the absence of a direction as to the enquiry into mesne profits in the final decree in a suit where possession and mesne profits were asked for and both reliefs were granted, will not be a factum which should weigh with Courts to negative such an enquiry and to grant the reckoned profits after such an enquiry. As Rajamannar, C.J., has observed, final decree for mesne profits is a 'must' in a case where the preliminary decree provides for it. It is this which was sought by the respondents under Order 20, Rule 12, Civil Procedure Code. The lower Court has rightly appreciated the position, there is no error of jurisdiction or any other material irregularity in the order impugned. The Civil Revision Petition is dismissed. There will be no order as to costs.


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