K.M. Krishnaiah vs Tirumala Tirupathi Devasthanam

Krishna Saran Shrivastav, J.—This revision is directed against the order passed by the Additional District Judge, Tirupathi, in A.S.No. 75/1988, dated 22-8-1994, whereby the order passed by the Principal District Munsiff, Tirupathi, assessing the mesne profits, has been set aside and the case has been remanded for decision afresh after giving opportunity to both parties to lead further evidence.

The facts giving rise to this revision may briefly be stated as follows. A decree for possession of the suit lands had been passed by the High Court in S. A.No. 781 /1982, dated 24-4-1987 against the respondent-judgment debtor which preferred a special leave to appeal bearing No. 5760/87. At the instance of the petitioner, the Apex Court granted special leave to it to appeal on 27-7-1987 and was pleased to order stay of execution of the decree of the High Court which reads as under :

"Till the disposal of the appeal there shall be stay of the execution of the decree of the High Court subject to the condition that the appellant shall deposit mesne profits as determined by the Court of District Munsiff, Tirupati after affording the parties an opportunity of hearing and leading their evidence as to the quantum amount of mesne profits. The amount of mesne profits shall be deposited within one month from the date of determination. The appellant shall continue to pay the same at the same rate on or before 15th July each year. The respondent is at liberty to withdraw the said amount deposited in the Court on furnishing Bank Guarantee for restitution. In the event the appeal fails, the appellant shall comply with the decree forthwith."

In preference of the order passed by the Apex Court, the petitioner-decree holder filed an application under Order 20 Rule 12 of the CPC read with Section 157 of the Code for determination of the mesne profits in respect of the suit lands from the date of his dispossession. Both parties led evidence and the trial Court determined the mesne profits from 3-8-1969 to 30-6-1987 on different rates amounting to Rs. 58,250/- and ordered the respondent-judgment debtor to deposit the said amount within one month from the date of the order (18-1-1988), as directed by the Apex Court. It further ordered that the judgment debtor shall continue to pay the mesne profits at the rate of Rs. 6,000/- per annum from 1-7-1987 onwards by 15th July of every year. This order was challenged in appeal. As noted above, the appellate Court set aside that order and remanded the case for re-trial.

Feeling aggrieved by the impugned order, the petitioner-decree holder has preferred this revision.

It is urged on behalf of the petitioner-decree holder that the impugned order passed by the trial Court was not appealable because it is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure, because no decree for mesne profits had been passed by the High Court in Second Appeal No. 781/82. The Apex Court has directed the trial Court to determine the mesne profits after giving an opportunity to both parties and the trial Court has determined the mesne profits accordingly. Under these circumstances, if the respondent was aggrieved by the impugned order of the trial Court, it should have moved the Apex Court and not the 1st appellate Court which has no jurisdiction to decide the matter. It is further urged on behalf of the petitioner that the impugned order passed by the trial Court is a reasoned order because it has determined the mesne profits on the basis of the evidence on record that the respondent would have derived so much income per annum.

On the other hand, relying on Babburu Basavayya and Others Vs. Babburu Guravayya and Another, and Nallasivam Chettiar v. Avudayammal, AIR 1958 Madras 462, it is contended by the learned counsel of the respondent that the trial Court is competent to pass many interim final decree and, therefore, the impugned order passed by the trial Court must be treated as a decree for mesne profits, particularly when the petitioner himself had filed an application under Order 20 Rule 12 of the CPC for determination of the mesne profits and, therefore, the appellate Court has jurisdiction to try and dispose of the appeal. In the alternative, it is contended on behalf of the respondent, that, in the event of setting aside the order of the appellate Court, the case should go to it for determination of the mesne profits by itself only on the basis of the material on record because the appellate Court has not re-determined the mesne profits but has only remanded the case to the trial Court for re-determination of the mesne profits on the ground that there is evidence on record regarding the profit that was earned or could be earned from user of the suit lands. Relying on Fateh Chand Vs. Balkishan Das, , it is also contended that the trial Court has miserably erred in assessing the mesne profits on the estimated return of the value of the suit lands instead of value of the user of the suit lands.

It is too well settled that, the expression ''Decree'' as defined u/s 2(2) of the CPC indicates that, a decree must satisfy the conditions: (1) there must be an adjudication (2) which must have been given in a suit (3) determining the rights of the parties with regard to all or any of the matters in controversy in the suit (4) which must be of a conclusive nature, and (5) there must be a formal expression of such adjudication. In the case of Diwan Bros. Vs. Central Bank of India, Bombay and Others, it is held that for an adjudication to be a decree, three essential conditions are necessary, namely: (1) that the adjudication must be given in a suit, (2) that the suit must start with a plaint and culminate in a decree, and (3) that the adjudication must be formal and final and must be given by a Civil or Revenue Court. Thus, it is clear that, merely because there exists some order captioned as ''decree'' drawn up even in the form of decree, it would not make such an order a ''decree'' unless the order satisfies the aforementioned requirements.

In the case of Babbum Basavayya (supra), it is held that, the question of profits or mesne profits arises in suits for ejectment or recovery of possession of immovable property from a person in possession without title together with a claim for past or past and future mesne profits. The possession of the defendants not being lawful, the plaintiff is entitled to recover mesne profits as defined in Section 2 Clause 12 of the Code of Civil Procedure, such profits being really in the nature of damages. Order 20 Rule 12 of the CPC deals with this class of suits while Order 20 Rule 18 of the Code deals with the suits for past and future mesne profits and for accounts by one or more tenants in common against others, and suits for partition by a member of the Joint Hindu Family with a claim for an account from the Manager and in these types of cases, the possession and receipt of profits by defendants not being lawful, the remedy of the plaintiff is to have an account for such profits. In the second class of suits, the Court has not only to divide the common properties but also has to adjust the equities arising between the parties out of their relation to the common property. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Even after the passing of the preliminary decree, it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20 Rule 18 of the CPC does not prohibit the Court from issuing such directions after the stage of the preliminary decree. The mere fact that the preliminary decree does not direct an enquiry into profits subsequent to the date of the suit does not preclude the parties from applying for or the Court from awarding such profits by its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree and in either case, the result of the enquiry has to be incorporated in the final decree.

In the case of Nallasivam Chettiar (supra), it is held that, between the preliminary decree and the final decree, the lower Court can pass many interim final decrees, and when the lower Court adjudicates upon this matter, it can be treated as an interim final decree. In such a case, it is open to the plaintiff to file an appeal against that interim final decree if so advised, or it is open to the trial Court to take this up as a part of the final decree itself in case there is no urgency and in that case an appeal can be filed against the final decree itself. In this case, during the pendency of the second appeal, an interim order was passed directing the 4th defendant to approach the lower Court for orders as to determining the quantity of the marriage expenses. Admittedly, in this case, the marriage expenses of the 4th defendant constituted a legitimate item of expenditure to be incurred by the Joint family. Before the marriage expenses could be determined by the lower Court, the second appeal was disposed of. Thereafter, the proceeding before the lower Court was challenged before the High Court on the ground that the order relating to the provision of the marriage expenses of the 4th defendant got merged in the second appeal and hence the lower Court was not competent to entertain any further application. Under these circumstances, it was held by the learned Single Judge of the Madras High Court that the order that may be passed by the lower Court can be treated as an interim final decree which would be appealable.

The position of law that emerges now is that in a suit for partition and for accounts, after the preliminary decree is passed, the trial Court may pass any orders of interim nature, during the pendency of the final decree proceedings, which orders may be treated as final orders and they may be appealable.

In the case on hand, as noted above, the suit for possession of the suit properties had been decreed. There was neither any relief for mesne profits nor it was ever decreed. The decree passed by the High Court in the second appeal was the final decree and not the preliminary decree. The Apex Court had ordered the determination of mesne profits and for depositing the sum as a condition for stay of execution for recovery of possession. Thus, by no stretch of imagination, it can be said that the impugned order passed by the trial Court can be treated as an interim final decree, because it has no jurisdiction to pass such an order in the absence of direction of the Apex Court.

In the case of Nallasivam Chettiar (supra), the second appeal had already been disposed of. The marriage expenses of the 4th defendant had to be determined as it was undisputedly the liability of the joint family was not made dependent upon the passing of the final interim decree because in the absence of urgency that could have been taken up as a part of the final decree itself for the aforesaid reason.

For the reasons aforesaid, the respondent-judgment debtor cannot take the aid of the law laid down in the case of Babburu Basavayya (supra) and Nallasivam Chettiar (supra) and, therefore, the contention of the learned counsel of the respondent that the impugned order of the trial Court was appealable cannot be accepted.

For the foregoing reasons, it does not appear necessary to consider whether the impugned order passed by the lower Court is legal or not because the appellate Court had no jurisdiction to entertain the appeal. It is a question of law which goes to the root of the jurisdiction of the appellate Court and, therefore, even if this plea was not raised at the time of hearing of the 1st appeal, the petitioner-decree holder was entitled to take that plea in revision before the High Court.

In result, the revision is allowed. The impugned order passed by the appellate Court on 22-8-1994 remanding the case to the trial Court for retrial is set aside and as a sequel to that, the order passed by the trial Court, through which the mesne profits have been determined, is restored. However, in the circumstances of the case, I leave the parties to bear their own costs.