MAHADEO Vs. RAGHOBA

JUDGEMENT

(1.) MR. Bapat appearing for the non-applicant No. 2 has raised a preliminary objection about the maintainability of the revision. As per the impugned order the Civil Judge, Junior Division, Yavatmal has determined the mesne profits amounting to Rs. 24,540/- holding that the mesne profits shall be paid jointly and severally by the applicants to the Opponent/non-applicant No. 2. Mr. Bapat contended that against the decree of mesne profits only appeal lies and no revision is tenable. He has invited my attention to section 115 of the code of Civil procedure. The portion which is material for our purpose reads thus :---

(2.) MR. Natu has conceded that if the impugned order is treated as decree then the revision is not tenable. He, however, contended relying on Order XX, Rule 6-A that as no Court fee is paid and as no decree is drawn up, the impugned order cannot be termed as decree. According to him, it is only an order apportioning the liability. He has heavily relied on sub-rule (2) of Rule 6-A of Order XX which is cited supra. Mr. Natu emphatically contended that in the instant case neither decree was drawn nor request was made to the Court for drawing up the same and consequently there was no reason for the Court to certify as to why the decree was not passed. In view of all this Mr. Natu contended that the impugned order cannot be termed as a decree. Mr. Natu further contended that the present proceedings are not the proceedings of execution and, therefore, the last paragraph of the impugned judgment cannot be deemed to be a decree. He has further contended that since the earlier part of sub-rule (b) refers to execution and to no other proceedings, the appeal could not be deemed to have been included in such proceedings. In my view, sub-rule (b) has to be read as a whole; the earlier part cannot be read in isolation as Mr. Natu is trying to do. If it is read as a whole then it leaves no doubt that it would also include appeal. Consequently I hold that impugned order is decree.

(3.) MR. Natu has submitted that section 115 of the C. P. C. only refers to the appeal which lies to the High Court and the bar created by section 115 (1) would exclude the appeal to the District Court. If sub-section (1) of section 115 is read in isolation then Mr. Natu may be right. But sub-section (2) of section 115 makes the position absolutely clear. It reads thus :-