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Satish Chandra Chakravarti Vs. Sarat Kamini Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal383,118Ind.Cas.852
AppellantSatish Chandra Chakravarti
RespondentSarat Kamini Devi
Excerpt:
- .....the suit brought by the respondent decree-holder was for possession of certain properties and for mesne profits apparently including the mesne profits even after the date of the suit. the trial court dismissed the suit. on appeal by the plaintiff it was decreed. this decree which is dated 23rd january 1922 was for possession as well as for mesne profits; and an order was made by the lower appellate court for sending the case to the trial court for ascertainment of mesne profits. the defendant-appealed against that decree to the high court which was dismissed on 17th july 1923. after that, an enquiry was made as to the amount of mesne profits which must have been for a period of three years, according to order 20, rule 12, civil p.c. after the date of the decree. this was made on 30th.....
Judgment:

1. This it, an appeal by the judgment-debtor against an order of the Subordinate Judge dismissing his appeal in the matter of execution in which he raised an objection that the execution of the decree for possession had been barred by limitation. The suit brought by the respondent decree-holder was for possession of certain properties and for mesne profits apparently including the mesne profits even after the date of the suit. The trial Court dismissed the suit. On appeal by the plaintiff it was decreed. This decree which is dated 23rd January 1922 was for possession as well as for mesne profits; and an order was made by the lower appellate Court for sending the case to the trial Court for ascertainment of mesne profits. The defendant-appealed against that decree to the High Court which was dismissed on 17th July 1923. After that, an enquiry was made as to the amount of mesne profits which must have been for a period of three years, according to Order 20, Rule 12, Civil P.C. after the date of the decree. This was made on 30th April 1926. The decree-holder did not take possession before that date. He applied for execution of the decree for delivery of possession as also for mesne profits on 24th March 1927. Both the Courts below have held that time should run from the date of final disposal of the case which, they thought, was the date when mesne profits were assessed, that is in April 1926. The judgment-debtor contends before us in his appeal that limitation for the execution of the decree for possession runs from 17th July 1923 when the appeal to the High Court was dismissed. The contention on behalf of the decree-holder respondent is that the Courts below were right in holding that limitation ran from April 1926 on the ground that it was an entire decree which the decree-holder was entitled to execute and so long as the mesne profits had not been ascertained, the decree was only a preliminary one. That contention of the respondent can hardly be supported on principle.

2. A decree according to the explanation of the term in Section 2, Civil P.C, may be final as well as preliminary, and a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of , it is final when the adjudication completely disposes of the suit. The next provision is that a decree may be partly preliminary and partly final. 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. Order 11, Rule 4, Civil P.C, entitles the plaintiff to join two claims for possession and mesne profits in one suit. 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.. In such a suit, although one decree is made, it is partly preliminary and partly final. The final part of the decree can be executed apart from the preliminary part, and it falls within the provisions of Article 182, Lim. Act. Time for execution of the decree for possession, therefore, runs at the latest from the date of the final decree, of the appellate Court. The judgment and order of the Court below so far as it holds that the application for execution of the decree for possession is not barred by limitation must be set aside and we hold that that part of the application must stand dismissed with costs.

3. There is no appeal with regard to the execution about the decree for mesne profits. The application for execution of the decree for that amount is within time and the decree-holder will be entitled to proceed with the execution of that portion of the decree.

4. The appellant is entitled to his costs of this appeal which we assess at two gold mohurs.


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