RAGHAVAN PILLAI Vs. DAMODARAN NAIR

JUDGEMENT

(1.) By the preliminary decree dated 22nd December 1959 the defendant was awarded mesne profits from 1st April 1958 till the date of the final decree and thereafter till recovery of possession of the property allotted to them as per the final decree. This decree was passed in a suit for partition whereby the seven plaintiffs sought to have their 7/8 shares separated and allotted to them. The defendant was allowed his 1/8 share with mesne profits as aforesaid. The quantum of mesne profits was directed to be ascertained in the final decree proceedings. Pursuant to the final decree proceedings a decree was passed on 11th March 1971. However, the quantum of mesne profits was not ascertained, nor was the same provided for by the decree dated 11th March 1971. The defendant appears to have preferred an appeal, A.S. No. 188 of 1972 on the file of the District Court, Quilon. However, the defendant did not impugn the decree passed on 11th March 1971 on the ground that there is no determination of the quantum of mesne profits, nor any provision in that behalf. A.S. No. 188 of 1972 was decided on 25th June 1974.

(2.) On 2nd July 1975 the defendant filed I. A. No. 2019 of 1975 praying that an additional decree be passed in the case. The defendant therein requested the court that a final decree be passed allowing the defendant the mesne profits due to him. This application was allowed by the lower court and hence this revision by the 1st plaintiff who unsuccessfully impugned the order passed by the learned Subordinate Judge in appeal before the District Court, Quilon.

(3.) It is contended that the decree passed on 11th March 1971 is a final decree and that thereafter the Trial Court has no jurisdiction to pass any further decree. A final decree as defined in the explanation to S.2(2) of the Code of Civil Procedure, 1908, completely disposes of the suit. Where a decree does not completely dispose of the suit, it is a preliminary decree. Note that the preliminary decree dated 22nd December 1959 declared the right of the defendant to recover mesne profits in the manner stated hereinbefore. The preliminary decree also directed quantification of the mesne profits in the final decree proceedings. The decree passed on 11th March 1971 does not provide for the same. This means that the suit has not been completely disposed of on 11th March 1971 in so far as the direction as regards the quantification of mesne profits has not been complied with and provision in that behalf has not been made in the decree of 11th March 1971. It is, therefore, difficult to hold that the decree of 11th March 1971 is the final decree in the case, though to the extent it goes the same may be an executable decree. All executable decrees need not be final decrees.