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2010 DIGILAW 1324 (AP)

Basani Durga Rao v. Rama Sri Kanyakaparameswari Sri Nagareswara Swamyvarla Alayamula Dharmakarthala Sangham rep.

2010-12-24

A.GOPAL REDDY

body2010
Judgment : This revision is filed challenging the order, dated 10.6.2010 passed in I.A.No.1473 of 2007 in O.S.No.725 of 1999 by the Principal Junior Civil Judge, Vijayawada. The petitioners herein are the defendants and the respondent is the plaintiff. The plaintiff filed the above I.A. under Order 20 Rule 12 of CPC seeking to pass a final decree granting mesne profits to the Sangham against the defendants by appointing an advocate-commissioner for ascertaining the mesne profits for the schedule property as per the present market rate of rent and value of the property by recording the evidence and direct the commissioner to file the report determining the damages payable by the defendants from 1.4.1999. The Court below allowed the above I.A. Aggrieved by the same, the defendants filed the present revision. The Office took objection as to the maintainability of the revision against the order passed in final decree proceedings, and returned the same. The learned Counsel for the petitioners-defendants re-presented the CRP stating that in a suit for eviction, there is no preliminary decree and final decree and therefore, the order under revision cannot be construed as an out come of a final decree and no appeal is provided against the order impugned herein. Hence, the revision is listed for orders of the Court. Heard and perused the material available on record. Originally, the plaintiff instituted the suit for arrears of rent, damages for use and occupation and eviction. The Court below decreed the suit. The Court below also held that the plaintiff is entitled to future damages to be decided by a separate petition under Order 20 Rule 12 CPC on payment of necessary Court Fee. Against the judgment and decree of the Court below, the petitioners-defendants preferred an appeal before the V Additional District Judge, Vijayawada, whereas the plaintiff preferred cross-appeal aggrieved by the quantum of damages. The appeal preferred by the tenants-defendants was dismissed and the appeal preferred by the plaintiff was allowed in part by modifying the damages granted by the Court below, to Rs.6,330/- instead of Rs.5,000/-and liberty was granted to file an application for appointment of a Commissioner to ascertain the mesne profits from the date of suit till the delivery of possession of the property. Aggrieved by the same, the defendants preferred second appeal and sought for stay of execution. Aggrieved by the same, the defendants preferred second appeal and sought for stay of execution. On 9.4.2007 this Court in SAMP No.1347 of 2006 and SAMP No.896 of 2007 in SA No.576 of 2006 ordered that there shall be stay of execution of the decree relating to the eviction of the appellants-defendants; the decree holder can file an application for ascertainment of future damages; on such ascertainment of damages, the defendants shall deposit the amount into the Court within two months from the date of filing of Commissioner’s report into the Court. Pursuant to the said order, the plaintiff filed the present I.A. for ascertainment of mesne profits, in which commissioner was appointed and on filing of his report, the I.A. was allowed holding that the plaintiff is entitled to claim damages at the rate of Rs.9,000/- per month from 1.4.1999 onwards and further damages at the enhanced rate of 33% p.a. for every three years with interest accrued thereon at the rate of 6% p.a., after deducting the amounts already paid by the defendants till delivery of possession of the premises by the defendants to the plaintiff subject to payment of Court fee, by filing calculation memo in respect of arrears of damages within two months. Against the said order, the present revision has been filed. Order 20 Rule 12 of C.P.C. reads as under: “Rule 12: Decree for possession and mesne profits:- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree. (a) for possession of the property; (b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until, - (i) the delivery of possession to the decree holder, (ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the Court; or (iii) the expiration of three years from the date of decree, whichever event first occurs. (2) Where an enquiry is directed under clause (b) 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. Sub-rule (3), which is made applicable to the State of A.P., has been added to Rule 12 of Order 20, which reads as under: (3) Where an appellate Court directs such an enquiry, it may direct the Court of first instance to make the inquiry; and in every case the Court of first instance may of its own accord, and shall whenever be moved to do so by the decree holder, inquire and pass the final decree.” Order 20 Rule 12 of CPC enables the Court to pass a decree in a suit for possession of immovable property, a decree for both past and future mesne profits. The provisions of Order 20 Rule 12(1), while doing away with the necessity of filing a fresh suit for future mesne profits accruing after the institution of the suit enables the Court to direct enquiry as to future mesne profits for the period specified in clause (c )(iii) of Rule 12 Order 20. When once such a direction is given in a preliminary decree, right to apply for ascertainment of mesne profits arises immediately after passing of the preliminary decree. All that clause c of Rule 12(1) provides is that the decree holder will be entitled for ascertainment of mesne profits only for a particular period. As per the decree of the trial Court, the plaintiff-decree holder is entitled to future damages to be decided by a separate petition under Order 20 Rule 12 CPC on payment of necessary Court fee. The same has been modified by the lower appellate Court granting liberty to the plaintiff to file an application for appointment of a Commissioner to ascertain the mesne profits from the date of suit till the date of delivery of possession. Thus, the Court below passed a final decree as contemplated under 12(3) of Order 20 by allowing the I.A. filed by the plaintiff-decree holder. Therefore, contention of the learned Counsel for the petitioners-defendants that in a suit for eviction, there cannot be preliminary and final decrees and the order impugned in this revision does not amount to final decree and hence, the revision is maintainable, cannot be accepted and the same is accordingly rejected. Therefore, contention of the learned Counsel for the petitioners-defendants that in a suit for eviction, there cannot be preliminary and final decrees and the order impugned in this revision does not amount to final decree and hence, the revision is maintainable, cannot be accepted and the same is accordingly rejected. The decree, if contains a direction as to the enquiry to be made so as to ascertain amount of mesne profits from the date of institution of the suit till the date of delivery of possession of the property to the decree holder, is a preliminary one and any order passed after completion of such enquiry in terms of the decree shall be treated as a final decree as per Order 20 Rule 12 (3) of CPC. Therefore, the contents of the decree and provisions of Order 20 Rule 12 makes it clear that the order impugned herein is a final decree (subject to condition of payment of Court fee), which is appealable under Section 96 of CPC. Hence, the revision is not maintainable. As a consequence of which, the objections are sustained. Accordingly, the CRP (SR) is rejected. Further, the impugned order is passed pursuant to the directions issued by this Court in SAMP Nos.1347 of 2006 and 896 of 2007 in SA No.576 of 2006. The petitioners-defendants if aggrieved by the final decree can assail the correctness of the same in the second appeal or at liberty to prefer an appeal, if they are so advised. Consequent to rejection, Registry is directed to return all the papers for enabling the petitioners to avail remedies available to them.