Indra Narayan Bera vs Narendra Nath Patra and Another

Pradyot Kumar Banerjee, J.—In this Rule, the petitioner has challenged the order passed by the learned Munsif on an application under Order 20, rule 12 of the Code of Civil Procedure. The plaintiff filed a suit and got a decree for delivery of possession as also for mesne profits. In execution of the decree for delivery of possession, the petitioner got possession of the suit premises on 26th February, 1968. Admittedly, three years thereafter the plaintiff-decree holder filed an application under order 20, rule 12 for ascertainment of the mesne profits. On the application being made, the judgment-debter filed an objection and centended that the application being after more than three years, the application is barred by limitation. That objection was ever-ruled by the learned Munsif whereupon the petitioner moved this court and obtained the present Rule. The only point raised by Mr. palit on behalf of the petitioner before me is that the application under order 20, Rule 12 is barred by limitation being filed after more than three years and is hit by Article 137 of the Limitation Act, 1963.

Mr. Dhruba Mukherjee on behalf of the opposite party, however, contended that there is no period of limitation fixed for an application under Order 20, rule 12 of the Code of Civil procedure. It is argued by Mr. Mukherjee that suits remaining pending, applications in suits for ascertainment of mesne profits in pursuance of preliminary decree already passed cannot be said to be barred by limitation. In my opinion, the contention put forward by Mr. Mukherjee must be accepted to be correct. It appears from Order 20, rule 12 of the Code that it is for the court to pass the final decree in accordance with the preliminary decree and after making necessary enquiry, the order should be made. It is also clear that order can made in a suit which is pending and and preliminary decree dose not dispose of the suit unless a final decree is passed. Therefore, in my opinion, for an application for ascertainment of mesne profits, no period of limitation has been provided under Order 20, rule 12 of the Code and Article 137 of the Limitation Act has no application. In a case reported in ILR 19 Cal. 132 a similar question arose. Their Lordships held that neither Article 178 nor 179 of the Limitation Act applies on an application for ascertainment of mesne profits awarded by a decree in accordance with the provisions of sections 211 or 212 of the code of Civil procedure. In my opinion, the principle laid down by the Full Bench case applies in all force in this case also and the residuary Article in the earlier Limitation Act being Article 178 was held not applicable in an application u/s 211 or 212 for ascertainment of mesne profits. In this case also in my opinion, the period of limitation under the residuary Article 137 of the Limitation Act does not apply in an application for ascertainment of mesne profits in pursuance of a preliminary decree passed.

In the result, this Rule must fail and is hereby discharged.

There will be no order as to costs.