K.R. Muthualagappa Chettiar vs Ahmed Ibrahim Alim Saheb

The learned Subordinate Judge has set aside various orders on the ground that they were passed without jurisdiction. We understand that the

question has since again been raised in this very suit before the same Judge and that he has come to a different conclusion in view of certain recent

decisions of this Court. We are, however, not concerned with this. There is an obvious point in this case to which unfortunately his attention was

not drawn. If the decree in question was a preliminary decree, the subsequent proceedings now impeached would be merely proceedings in the

suit If, on the other hand, the decree was final, they would be proceedings in execution. It is not seriously disputed that the Court which heard the

applications and made the orders which are said to be invalid, was a Court which had jurisdiction to execute the decree. The question, therefore,

that has to be decided is, was the decree dated 12th January 1916 in O.S. No. 4 of 1913 preliminary or final? It contains a direction that the

defendants shall deliver to the plaintiff possession of the property. Mesne profits up to the date of suit are fixed at Rs. 13,912-9-10 and thus there

is no inquiry directed in regard to the present mesne profits. Under Order XX, Rule 12, O.P.C., it is open to the Court either to pass a decree for

the past mesne profits or to direct an inquiry as to such profits. In this case, the first course was adopted. The decree then awards subsequent

mesne profits in respect of wet lands at 100 kalams of paddy per veli per year, in respect of dry lands 6 annas per mah per year. Here must point

out that there is a deviation from the terms of the section. Order XX, Rule 12(1)(c), C.P.C. contemplates only an Inquiry as to the amount of

subsequent mesne profits; But the decree does not direct such an inquiry but decides the measure of the defendant''s liability. We fail to see how

this can be called a preliminary decree. It is final in every sense of the word. Section 2, C.P.C., says that a decree is final when the adjudication

completely disposes of the suit. Herein every point regarding mesne profits (past and future) was decided and there remained nothing for further

decision in the suit.

If we turn to the decree of the High Court, passed in appeal, what do we find? It modified the decree of the Subordinate Court substantially

only in one particular. For the joint liability for mesne profits of the defendants, it substituted separate liability of the various defendants in

proportion to the extent of the land in their occupation. There is no further interference with the decree of the first Court. Order XX, Rule 12,

Clause (2) runs thus:

""Where an inquiry is directed under Clause (6) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance

with the result of such inquiry"". It follows from this, that if the Court after ascertaining mesne profits parses a decree for the sum without directing

an inquiry, the decree is not preliminary but final. See the observations of Kumaraswami Sastri, J., in Subbe Goundan v. Krishnamachari 68 Ind.

Cas. 869 : 45 M. 449 454 : 30 M.L.T. 217 : 42 M.L.J. 372 : 15 L.W. 537 : (1922) M.W.N. 269 : AIR (1922) 112.

In this view, no question of defect of jurisdiction arises. The orders were rightly passed and are valid. The appeal, is, therefore, allowed with

costs throughout.