Pazhaniyappa Gounder vs Maruthachalam and Others

K.K. Usha, J.—The revision petition is at the instance of 1st judgment-debtor/1st Petitioner in E.A. No. 261/95 in E.P. No. 224/98 in O.S. No. 442/82 before the Sub Court, Palakkad. The E.A. was filed stopping the execution proceedings on the ground that the decree was not executable and the quantum of profits has to be determined in final decree proceedings. The E.A. was dismissed by the execution Court on the ground that the decree was in conformity with the judgment and therefore, the E.A. is not maintainable.

When the revision petition came up for arguments, learned Counsel appearing on behalf of the Petitioner submitted that the revision is only to be dismissed, but this Court may clarify that the direction given by the trial Court that the quantum of mesne profits is left open to be estimated in the execution proceedings under Order XX Rule 12 of the CPC is not correct. The wording of Order XX Rule 12 of the CPC would show that the procedure to be followed is to pass a preliminary and then a final decree under Order XX Rule 12(ii) quantifying the rent or mesne profits, as the case may be.

The judgment and Decree passed by the Sub Court in O.S. No. 442/82 were affirmed by this Court in O.P. No. 239/87. Thus a final decree itself has been passed in this case directing inquiry into mesne profits etc. in execution and the same was affirmed by this Court. In the light of the provisions contained, under Order XX Rule 12(1), a decree for possession and payment of rent and mesne profits etc. has to be passed and thereafter a final decree as provided under Sub-rule (2). The procedure adopted by the Court below is irregular. As was observed by Padmanabhan, J. in Narayana Bhatta v. Lakshmi Amma 1988 (1) KLT 171 the enquiry that is directed is not a procedure in execution, but one in continuation of the original suit. It is true that the judgment of the trial Court was rendered before the decision or the learned Single Judge referred above. I am in full agreement with the view taken by the learned Judge that the irregularity committed in the procedure cannot make the decree one without inherent jurisdiction. The execution Court is, therefore, bound to execute the decree as it is. But the correct procedure is to pass a final decree in the suit itself.

With the above observations, the civil revision petition stands dismissed.