PALANIVEL PILLAI Vs. SIVAKOLUNDU ODAYAR AND ORS.

JUDGEMENT

(1.) THE first defendant in a partition action aggrieved by an order made by the District Munsif of Tirukoilur under Order 20, Rule 12, Code of Civil Procedure, for the determination of mesne profits in the main suit, has come up to this Court. It is common ground that a preliminary, decree for partition was passed on 24th July, 1961. But the matter was taken up further to the first and the second appellate Courts and ultimately by a decree of this Court dated 26th September, 1967 the judgment of the trial Court was upheld. In the preliminary decree, it is conceded that there was a direction regarding the ascertainment of mesne profits as provided for under Order 20, Rule 12, Code of Civil Procedure. But when the matter was pursued further for obtaining a final decree and when indeed a final decree was secured by the party, no provision was made therein for the determination of the mesne profits in accordance with law. The final decree was passed on 14th August, 1968. This was silent about such determination of mesne profits. The properties were, however, delivered by the first defendant acting in pursuance of Court proceedings, on 11th July, 1970. The first defendant, however, was not Called upon till then to account for the mesne profits of the suit property which was in his possession during the pendency of the suit and until it was delivered back to the persons entitled thereto. In or about June, 1973 the present application under Order 20, Rule 12, Civil Procedure Code, was filed by the respondents for the determination of the mesne profits from 11th July, 1960 which is the date of presentation of the plaint in the action until 11th July, 1970 which was the date when admittedly the petitioner had first delivered possession of the property to the respondents. The application was resisted by the petitioner on the ground that the application is beyond time. There was also another contention that the final decree proceedings not having incorporated the clause regarding ascertainment of mesne profits, there could not be an enquiry into such mesne profits after the passing of a final decree which is silent about it. The learned District Munsif did not agree with the petitioner and he directed an enquiry as prayed for. It is as against this, the present Civil Revision Petition has been filed.

(2.) MR . N. Sivamani, learned Counsel for the petitioner relying upon a decision of this Court in Thyagarajan v. Sundaravelu : AIR 1972 Mad 216 , contended that the enquiry regarding mesne profits must in every case be concluded before the final decree is passed to enable the Court which passes the final decree to incorporate the same in it, and that not having been done in the instant case, the lower Court was wrong in having directed such an investigation. He would also rely upon the observations of the Supreme Court in Subbama v. Subbabba : [1965] 2 SCR 661 . Another contention that there could not be a direction for ascertainment of mesne profits beyond three years from the date of the appellate decree is pressed into service. The learned Counsel for the respondents, however argues to the contrary.

(3.) WE are here concerned with Order 20, Rule 12(c). In a case where possession of immovable property is sought and contemporaneously a decree for rent or mesne profits, the Court may pass a decree directing an enquiry as to rent or mesne profits from the date of the institution of the suit until delivery of possession or the expiry of three years from the date of the decree, whichever event first occurs. Obviously, one of the events referred to in Order 20, Rule 12(c)(1) is the event of delivery of possession of the property to the decree -holder. The language is so plain and clear that the meaning cannot escape normal understanding. It means that an enquiry as to rent and mesne profits can be made by the competent Court for a period commencing from the date of the institution of the suit till the expiry of three years from the date of the decree. The decree referred to may be a decree of the trial Court, may be of the first appellate Court or may be of the second appellate Court or a decree of a Court in the higher hierarchy as well. Obviously, the word 'decree' has to be interpreted as the decree which has become final in the eye of law and in accordance with the procedure available in our country. It is not in dispute that such a decree was passed by the High Court on 26th September, 1967. Therefore an enquiry into such mesne profits could be made for the period commencing from 11th July, 1960 the date of institution of the suit, till 26th September, 1970. But in this case, the event referred to in Sub -clause (iii) of Order 20, Rule 12, Civil Procedure Code, has occurred. This is because the decree -holder has obtained possession of the property through Court. That event having occurred first, the period of investigation should necessarily be restricted to the period commencing from the date of institution of the suit till the date of delivery of possession. I am unable to agree with the contention of the learned Counsel for the petitioner that the period of enquiry should stop at any time earlier than 11th July, 1970.