NARAYANA BHATTA Vs. LAKSHMI AMMA

JUDGEMENT

(1.) The Subordinate Judge, Kasaragod passed a decree far possession of immovable property as if it is a final decision of the case. Mesne profits was allowed without specifying the period from or upto which it was granted. Rate of mesne profits was directed to be decided in execution. A.S. 130 of 1975 filed by the defendant was partly allowed by this court. The decision of this court also proceeded as if it is a final decision of the case. While confirming the decree for possession and the direction to ascertain mesne profits in execution, the claim of the defendant for value of improvements was allowed fixing the same at Rs. 65,708.41. Plaintiff was held entitled to get possession only on payment of value of improvements. Though the decree for mesne profits was confirmed, this court also did not specify the period from or upto which the plaintiff was entitled to the same.

(2.) Plaintiff then moved the Trial Court under O.20 R.12 C.P.C. for a final decree under sub-rule (2) as if the decree already passed is a preliminary decree directing an inquiry regarding mesne profits under O.20 R.12(1)(c). Though the prayer was opposed by the defendant it was allowed by the Trial Court. On the ground that the direction to ascertain mesne profits in execution is a nullity the Trial Court took the stand that the decree already passed is only a preliminary decree. Though the decree did not specify the period from which mesne profits was allowed, the Trial Court held that the plaintiff is entitled to mesne profits from the date of suit namely 20-3-1968. A commission was ordered to be issued for ascertaining mesne profits. The question whether mesne profits could be allowed to be set off towards value of improvements was directed to be decided in execution. That is the order challenged by the defendant in this revision petition.

(3.) It is true that under the present Code e decree for possession and payment of rents or mesne profits should be as provided in O.20 R.12(1) and thereafter there should be a final decree as provided in sub-rule (2). But it so happened that a final decree itself was passed directing inquiry into mesne profits in execution and the same was confirmed by this court with the modification mentioned above. The question for consideration at present is whether such a direction is a nullity entitling the Trial Court to ignore the same and proceed under O.20 R.12(2).