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Kandaswamy Koundar Vs. Thirumurthy Goundar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)1MLJ155
AppellantKandaswamy Koundar
RespondentThirumurthy Goundar and anr.
Cases ReferredPalanivel Pillai v. Sivakolundu Odayar
Excerpt:
- .....in the year 1948 and for possession of their 2/3rd share in one half of the suit property and for mesne profits. a preliminary decree was passed on 25th january, 1950. as against that, there was an appeal in a.s. no. 426 of 1950 to this court, and by judgment dated 27th october, 1954, the plaintiffs were given mesne profits from 14th december, 1948, till date of delivery of possession of the property. on 11th february, 1957, the plaintiffs applied for passing of the final decree. a commissioner was appointed who made three reports on 27th october, 1958, 12th november, 1958 and 17th december, 1958. after the receipt of these reports, there was an interim final decree on 14th february, 1959. as against that interim final decree, there was an appeal which was dismissed. on 28th february,.....
Judgment:

V. Sethuraman, J.

1. The second defendant in O.S. No. 409 of 1948 on the file of the Court of the Subordinate Judge of Udamalpet is the appellant herein. The plaintiffs filed the suit for partition in the year 1948 and for possession of their 2/3rd share in one half of the suit property and for mesne profits. A preliminary decree was passed on 25th January, 1950. As against that, there was an appeal in A.S. No. 426 of 1950 to this Court, and by judgment dated 27th October, 1954, the plaintiffs were given mesne profits from 14th December, 1948, till date of delivery of possession of the property. On 11th February, 1957, the plaintiffs applied for passing of the final decree. A commissioner was appointed who made three reports on 27th October, 1958, 12th November, 1958 and 17th December, 1958. After the receipt of these reports, there was an interim final decree on 14th February, 1959. As against that interim final decree, there was an appeal which was dismissed. On 28th February, 1973, there was a final decree directing mesne profits being paid at the rate of Rs. 500 per annum from 14th December, 1958, till date of delivery of possession. It is this direction that is now objected to.

2. The learned Counsel for the appellant contended that though there may be more than one preliminary decree in a suit for partition, there could be only one final decree and that the Code of Civil Procedure does not envisage passing of piecemeal final decrees. In support of this submission he relied on a decision of this Court in Thyagarajan v. Sundaravelu : AIR1972Mad216 . In that case, a final decree had already been passed on 31st July, 1967, before the enquiry into the mesne profits was completed. There was no interim final decree as here. The order completing the enquiry into mesne profits was passed on 30th April, 1970. It was contended that more than one final decree could be passed in a partition suit. It was argued that if a partition suit comprised various items, more than one final decree could be passed; but in respect of each item, there could be only one final decree and not more than one, and that final decree should be final and complete with regard to that item. It was also pointed out that the mesne profits accruing from the said property formed part and parcel of the corpus and that there could not be a piecemeal final decree in respect of the same item or property, one relating to the corpus and the other relating to mesne profits. I am unable to agree that this decision has any application to the facts of this case. That was a case where a final decree had already been passed on 31st July, 1967. When once the suit was completely decided by the Court, the Court had no jurisdiction to pass any further order regarding the mesne profits. Therefore this decision had to be understood only in the light of the peculiar facts, namely, that the suit itself had been finally decided by the Court and that it therefore erroneously assumed jurisdiction to go into the mense profits. It could not do so.

3. Another decision to which my attention was drawn is that of the Patna High Court in Sudarsman Dass v. Ramkripal Das : AIR1972Mad216 . In that case for partition, in the plaint the plaintiff claimed a decree for mesne profits past pendente lite and future profits. By the judgment of the trial Court, the suit was dismissed. The trial Court held that the plaintiff was not entitled to any share and in that view, there was no question of any mesne profits. That judgment was set aside ultimately by the Judicial Committee of the Privy Council in November, 1949. The preliminary decree had therefore to be in accordance with the judgment of the Judicial Committee. However, there was no mention in that decree about the plaintiff's claim to mesne profits. On these facts, it was pointed out that during the proceedings for passing the final decree, mesne profits should have been enquired into at least with regard to past pendente lite and that neither the plaintiff took any step in that direction nor did the Court do anything in that respect. When the final decree was passed without any reference to mesne profits or even any direction to mesne profits to be determined later on, the plaintiff could have appealed against that final decree, but he did not do so. It is in the light of these facts that the Patna High Court held that there could not be any enquiry into mesne profits. Here also it could be seen that the Court had rightly or wrongly disposed of the matter without any reference to mesne profits and it is thereafter that the question regarding mesne profits was agitated. It was held that the Court did not have any jurisdiction to do so This case also has to be understood in the light of the fact that the matter has already been disposed of by the Court and it wanted to consider the question of mesne profits after finally passing a final decree. In the present, case the decree dated 14th February, 1959 was itself in the nature of an interim final decree. Ex facie it stated that it was not a final decree disposing of the suit in toto. Against that decree, there was an appeal and that appeal was dismissed. Therefore what was subsequently passed is only a continuation of the said final decree proceedings and it is now that the suit must get terminated. In these circumstances, I do not find any infirmity in the order of the Court below in giving the direction regarding the sum of Rs. 500 as mesne profits.

4. The learned Counsel for the appellant next contended that even assuming that the Court had jurisdiction to pass a decree in respect of mesne profits at this stage, still it could do so only for a period of three years from the preliminary decree and not beyond that date. For this purpose, reliance was placed on Order 20, Rule 12 of the Code of Civil Procedure. It provides that where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree directing an inquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decreeholder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decreeholder through the Court, or (iii) the expiration of three yean from the date of the decree whichever event first occurs. (Vide Order 20, Rule 12. Clause (c), Civil Procedure Code. The question whether Order 20, Rule 12 is applicable to a suit for partition has been the subject-matter of a decision by a Full Bench of this Court in Basavayya v. Guruvayya : AIR1952Mad61 , in which there is a reference to an earlier decision of a Bench of this Court in Kasi v. Ramanathan Chettiar : (1947)2MLJ523 The Full Bench observed as follows : 'Ordinarily there will be one preliminary and one final decree, but as pointed out in Kasi v. Ramanathan Chettiar : (1947)2MLJ523 , there is nothing in the Civil Procedure Code which can be construed as a prohibition against the Court, in proper case, passing more than one preliminary decree and one final executable decree in a suit. The relevant provisions of the Code and the earlier rulings of this and the other High Courts are reviewed in the judgment of Patanjali Sastri, J. with which we are in respectful agreement. A judicial determination of the amount of future profits has to be made with reference to any one of the three events specified in Order 20, Rule 12, Sub-rule (1)(c), whichever event first occurs. If a preliminary decree awarding possession contains a direction for enquiring into future mesne profits the suit or that part of the suit relating to future mesne profits continues to be pending and the decreeholder 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 period prescribed by Article 181 of the Limitation Act.' Later in the same decision at page 179, it was observed as follows:

We have dealt at some length on the scope and effect of Order 20, Rule 12, Civil Procedure Code, in view of the strong reliance placed on its terms by the learned Judges in Ghulusam Bibi v. Ahamadsa Rowther I.L.R. (1919) Mad. 296 : A.I.R. 1919 Mad. 998 which however like the present case, was a suit for partition. We have already stated that Order 20, Rule 12 relates to 'mesne profits' in the sense in which that expression is defined in Section 2, Clause (12) of the Civil Procedure Code. The claim of a plaintiff suing for partition and his share of the profits accruing from the lands pending the suit is not, properly speaking, a claim for 'Mesne Profits' and Order 20, Rule 12, Civil Procedure Coda, has no application to such a case. Order 20, Rule 18 (2), Civil Procedure Code provides that if a partition of immoveable property cannot be conveniently made without further enquiry, the Court may pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. In our opinion, this rule does not mean that all directions which may be necessary or proper to be given in a partition suit before a final decree is passed should be given at the stage of the preliminary decree itself. It may be necessary in a partition suit not merely to divide the properties, but also to realise outstandings, discharge common liabilities, sell properties not capable of easy division, direct different sharers to account for different periods of time in respect of profits of different properties, adjust the equities between the parties and give directions from time to time to the commissioners appointed to divide the properties or take accounts. It is not reasonable to suppose that the power of the Court to give directions in respect of all or any of these matters must be exercised only at the time of passing the preliminary decree and is exhausted with the passing of that decree. If Order 20, Rule 12 or the analogy of that rule is to be applied to suits for partition, as was done in Ghnlusam Bibi v. Ahamadsa Rowthter I.L.R. (1919) Mad. 296 : A.I.R. 1919 Mad. 998. a direction for an enquiry into profits past or future, can be given only at the time when a decree for possession of the property is passed, that is to say, at the time of the pasting of a final decree for partition of the properties when alone the sharers would be entitled to get possession of their respective allotments. On the completion of such enquiry, a further final decree in respect of profits will have to be passed. This was the view taken by Oldfield, J., in Mahalakshmamma v. Rajamma (1918) 43 I.C. 458 : A.I.R. 1919 Mad. 868, I might mention that the conclusion of the learned Judge was affirmed in L.P.A. Nos. 116 and 58 of 1917.

5. The above Full Bench decision itself envisages more than one direction being given at different stages of the proceedings in the passing of the final decree. There can thus be directions from time to time. It also shows that the provisions of Order 20, Rule 12 did not apply to a partition suit and that the proper provision to be applied is Order 20, Rule 13 In fact, Order 20, Rule 18, C.P. Code., opens with these words, namely, 'where the Court passes a decree for the partition of property or for the separate possession of a share therein' This is a special provision made for suits for partition and Order 20, Rule 12, C.P. Code applies to a suit for the recovery of possession of an immovable property and for rent and mesne profits. The two provisions are designed to meet different situations. Therefore, the restriction contained in Order 20, Rule 12, Sub-rule 1(c) will not apply to partition suits, which are governed by Order 20, Rule 18 of the Code of Civil Procedure.

6. Learned Counsel for the appellant invited my attention to the decision of the Supreme Court in Subbanna v. Subbanna : [1965]2SCR661 . That case dealt with the provisions of Order 20, Rule 12 of the Coda of Civil Procedure which as already held by the Full Bench of this Court is not applicable to a case of this nature. The decision of the Andhra Pradesh High Court in Venkata v. Lakshmi : AIR1967AP64 is on a suit between a principal and an agent to which the provisions of Order 20, Rule 18 have no application. It is therefore unnecessary to consider that decision any further. The only other decision cited by the learned Counsel for the appellant is that in Palanivel Pillai v. Sivakelundhu Odayar : (1977)2MLJ65 . That was also a suit for partition. At page 68 it was observed that it was well-settled that there could be more than one preliminary decree and more than one final decree. However, restrictions contained in Order 20, Rule 12 were considered to be applicable even to a suit for partition and the decision of the Fall Bench, cited supra appears to have been not noticed, in that decision. As there is a Full Bench decision laying down that Order 20. Rule 12, C.P. Code is not applicable to suits for partition, the decision in Palanivel Pillai v. Sivakolundu Odayar : (1977)2MLJ65 does not appear to be good law. There is no merit in the appeal and it is accordingly dismissed. There will be no order as to costs in, this appeal.


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