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E. Dalgliesh and ors. Vs. Nandan Misser and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.186
AppellantE. Dalgliesh and ors.
RespondentNandan Misser and ors.
Cases ReferredDebendra v. Khiroie
Excerpt:
civil procedure code (act v of 1908), order xx, rule 12 - determination of principle for ascertaining mesne profits--decree--appeal. - .....the plaintiffs who thereupon became entitled to obtain possession. the decree also directed that mesne profits would be ascertained after delivery of possession of the land. it is obvious that the decree was made in this form under rule 12 of order xx of the code of 1908. that rule provides that where the suit is for recovery of possession of immoveable property and for mesne profits, the court may pass a decree for possession of the property directing an inquiry as to mesne profits from the institution of the suit until the delivery of possession to the decree-holder. the rule further provides that where the inquiry is directed in this manner, a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry. it is clear, therefore, that the.....
Judgment:

1. This appeal is directed against an order by which the Court below has determined the principle whereupon mesne profits are to be assessed and directed their ascertainment by a Commissioner. A preliminary objection has been taken to the competency of the appeal on the ground that the order in question is not appealable as an order under any provision of the Code of Civil Procedure of 1908 nor is it appeal-able as a decree.

2. On the 26th July 1909, the Subordinate Judge decreed the suit in favour of the plaintiffs who thereupon became entitled to obtain possession. The decree also directed that mesne profits would be ascertained after delivery of possession of the land. It is obvious that the decree was made in this form under Rule 12 of Order XX of the Code of 1908. That Rule provides that where the suit is for recovery of possession of immoveable property and for mesne profits, the Court may pass a decree for possession of the property directing an inquiry as to mesne profits from the institution of the suit until the delivery of possession to the decree-holder. The rule further provides that where the inquiry is directed in this manner, a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry. It is clear, therefore, that the proceeding for assessment of mesne profits under Rule 12 of Order XX is a proceeding in a pending suit. Consequently, before the final decree has been drawn up, an interlocutory decree, whereby a question of principle is directed, is not appealable. But, on behalf of the appellant reliance has been placed upon the decision in Surja Pershad Narain Singh v. Reid 29 C. 622 in which it was ruled that an order of this description was appealable as a decree under Section 244 read with Section 2 of the Code of 1882. It is not necessary for us to consider now whether that decision can be defended on principle or whether it can be reconciled with the earlier decision in Behary Lal Pundit v. Kedar Nath Mullick 18 C. 469 where it was ruled that an order merely determining a point of law arising incidentally or otherwise in the course of execution proceedings was not a decree within the meaning of Section 2 of the Code of 1882 and was not appealable as such. We may point oat that even under the Code of 1882 it had been recognised in this Court by a Full Bench in the case of Puranchand v. Roy Radhakishen 19 C. 132 that proceedings for assessment of mesne profits were proceedings in a pending suit. See also Debendra v. Khiroie 5 Ind. Cas. 272. In our opinion it is plain upon Rule 12 of Order XX of the Code of 1908 that the order sought to be assailed is an interlocutory order in a pending suit and is not appealable as a decree. It cannot also be disputed that it is not appealable as an order under any provision of the Code. The appeal is, therefore, incompetent.

3. The result is that the preliminary objection is allowed and the appeal dismissed with costs. We assess the hearing fee at two gold mohurs.


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