Decided on December 01,1944

Jetti Kotamma And Ors. Respondents


King, J. - (1.) THIS appeal arises out of a suit by the plaintiffs to recover possession of certain property from the defendants with mesne profits. The decree for possession was granted in April; 1942, together with a decree for past mesne profits. No enquiry was ordered under Order 20, Rule 12 of the Civil Procedure Code, the learned District Munsiff of Ongole stating that he left the question of future mesne profits open. Subsequently in July, 1942, an application was made by the plaintiffs to the District Munsiff to direct an enquiry under Rule 12. The District Munsiff, explaining that, although he had not made it specific in his judgment, his intention was that the plaintiffs should, by means of a separate suit, claim future mesne profits, because their evidence in regard to mesne profits was unsatisfactory, dismissed the application. There was then an appeal to the learned Additional Subordinate Judge of Bapatla. He held that inasmuch as the District Munsiff did not say specifically that the plaintiff's only remedy was to file a separate suit the proper procedure was under Order 20, Rule 12 of the Code. No authorities appeals to have been cited before the Additional Subordinate Judge.
(2.) BEFORE me the learned advocate for the defendants relies upon a ruling of a Bench of this Court reported in Ghulsam Bibi v. Ahmadsa Rowther, I.L.R. (1918) Mad. 296. That ruling deals primarily with a preliminary decree and a final decree in a partition suit but in order to analyse the significance of an order under Rule 18 of Order 20, Rule 12 is also referred to by the learned Judges; and it is held that unless the decree in a suit for possession directs an enquiry there can be no such enquiry ordered in any final decree. A decision of Varadachariar, J., in Muttayya Kone v. Rakappa Ambalam, (1935) 70 M.L.J. 87 has been quoted on behalf of the respondent. That decision lays it down that where a decree for possession has been granted to a plaintiff he can apply for an enquiry under Order 20, Rule 12 of the Code without there being any specific reference to such an enquiry in the decree. It seems to me that if I have to choose between these two points of view, I must necessarily choose that of the former ruling, as the latter is by a single Judge only. With respect also it does appear to me that the language of Rule 12 of Order 20 is against the view taken by Varadachariar, J. Rule 12 specifically contemplates the passing of a decree and it is not a rule, it seems to me, which is Intended to be put into operation after the decree has been passed. The order to direct an enquiry must come as part of the decree itself. For these reasons, it seems to me that the matter of procedure upon which the learned District Munsiff and the learned Additional Subordinate Judge have thus differed, should be decided in favour of the view expressed by the learned District Munsiff, and that the effect of the judgment and decree of the learned District Munsiff is to forbid the applicability of Rule 12; and that the remedy of the respondents here is to file a separate suit. This appeal is accordingly allowed with costs throughout.;

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