Examine whether the decree is preliminary or final in the following case:- A sues B for recovery of possession of certain land and for mesne profits and a decree is passed in A’s favour.

Question: Examine whether the decree is preliminary or final in the following case:- A sues B for recovery of possession of certain land and for mesne profits and a decree is passed in A’s favour.

Find the answer to the mains question only on Legal Bites. [Examine whether the decree is preliminary or final in the following case:- A sues B for recovery of possession of certain land and for mesne profits and a decree is passed in A’s favour.]

Answer

The present question is related to Section 2(2) and Order XX Rule 12 of CPC, 1908. Section 2(2) provides the definition of a decree. Explanation attached to the section provides that, “a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. Further, It may also be partly preliminary and partly final.”

Order XX Rule 12 states that-

“(1) Where a suit is for the recovery of possession of the immovable property and for rent or mesne profits, the Court may pass a decree-

(a) for the 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 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 the decree, whichever event first occurs.

(2) Where an inquiry 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.”

By reading section 2(2) and order XX Rule 12 together it is clear that the decree passed in A’s favour is partly preliminary and partly final. In this case, the decree regarding the possession of the immovable property is final and enquiry regarding mesne profits is preliminary.

Case Law- In Lucy Kochuvareed v. P. Mariappa Gounder AIR 1979 SC 1214, (1220), the Supreme Court held that in the case of a suit for recovery of the possession of immovable property with mesne profits when the court decrees possession of a property and also directs the enquiry into mesne profits, the former part of the decree is final, while the latter part is only preliminary because the final decree for mesne profits can be drawn only after enquiry and the amount due is ascertained. In such a case, even though the decree is only one, it is partly preliminary and partly final.

However, it is notable that if the future mesne profits can be ascertained without directing an enquiry in this respect, a final decree may be passed directly without passing a preliminary decree. That’s why in Ganeshi Lal Sharma v. Snehalata Dassi, AIR 1947 Cal 68, it was held that if future mesne profits can be ascertained without the need of further inquiry a preliminary decree need not be passed.

But it is a rare and exceptional circumstance that occurs in a case of a suit for recovery of possession of immovable property with mesne profits. Thus, as a general rule in case of a suit for recovery of possession of immovable property with mesne profits, a preliminary decree is passed to make an enquiry regarding ascertainment of the amount of mesne profit along with final decree of recovery of possession of the immovable property.

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