PULWA Vs. BRIJNANDAN PRASAD

JUDGEMENT

(1.) It appears in this case that the plaintiffs brought a title suit for a declaration of title and recovery of possession of certain properties and also for mesne profits. The suit was decreed by the Additional Munsif of Monghyr on 29-6-1946, and subsequently his decree was affirmed by the district Judge and by the High Court. The plaintiff-decree-holders then filed an execution Case No. 139 of 1949 for recovery of possession, but an objection was filed by one Wali Mohammad who claimed to have purchased the property already at a court sale. The objection was allowed under Order 21, Rule 58, Code of Civil Procedure, and thereafter a suit appears to have been filed in accordance with Order 21, Rule 63. Code of Civil Procedure. The plaintiffs then filed an application for ascertainment of mesne profits. The defendants raised several objections, but these objections were overruled by the learned Munsif and it was held by the learned Munsif that the plaintiffs were entitled to mesne profits till the date of dispossession, namely, from 30-5-1940 till the year 1948. An appeal was taken against this order of the Munsif by the defendants and it has been held by the lower appellate Court that the plaintiffs were entitled to mesne profits from the date of dispossession till 6-7-1943, namely the date of purchase at the court auction by Wali Mohammad.

(2.) The sole argument addressed before us in this appeal- is that the lower appellate court had no jurisdiction to entertain the appeal against the order of the Munsif dated 18-9-1951, which was not in the character of a preliminary decree. Reference was made in this connection to the decision of Rudra Pratao Singh v. Sarda Mahesh Pd. Singh, ILR 47 All 543 : (AIR 1925 All 588) and Sahijram Rupchand v. Alu Tundu, A.I.R. 1942 Sind 60. In our opinion these decisions do not lay down the correct law on the point. Section 2 (2) of the Code of Civil Procedure defines a decree as follows : "2. (2) 'decree' means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include :. (a) Any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. EXPLANATION : 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. It may be partly preliminary and partly final." In the present case the Munsif has finally determined the right of the plaintiffs with regard to the period for which mesne profits should be recovered, namely, from the date of dispossession till the year 1948. That order finally determines the rights of the parties with regard to the duration for which mesne profits could be claimed and so falls within the definition of "preliminary decree" within the meaning of Section 2 (2) of the Code of Civil Procedure. That was the view expressed by the Privy Council in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh, ILR 23 All 152 (PC), in which a decree dated 12-11-1887 made by a district court for possession of land, awarded to the plaintiff future mesne profits. This decree was reversed by the High Court, but was restored and affirmed by the order of the Queen in Council, dated the 11th May, 1885. In execution of the decree relating to mesne profits the executing court ordered on the 22nd July, 1896 that mesne profits should be recovered for the period from the 12th November, 1887 to the 12th November, 1890. It was held by the Privy Council in these circumstances that the order of the executing court dated the 22nd July, 1896, is essentially final in its nature and within the meaning of Section 2 of the Code of Civil Procedure, so that it was appealable under Section 540 of the Code, though not one of those enumerated in Section 588 as appealable. This case has been followed by the Calcutta High Court in Peary Mohan Mookharji v. Manohar Mookharjee, AIR 1924 Calcutta 160 in a case which arose after the amendment of the Code of Civil Procedure in 1908. It was held by the learned Judge constituting the Bench, namely, Mookharjee, J. and Rankin J. that it was not essential that an adjudication should be covered by one of the specific cases of preliminary decrees mentioned in Order 20 in order that it may form the basis of a final decree. Those cases are only illustrations of preliminary decrees and help in determining the true meaning of the definition of the term "decree", and whether the order made by the Judge possesses the qualities of a decree, preliminary or final or partly preliminary and partly final, clearly depends upon its contents. In the Calcutta case there was an order made by the Subordinate Judge on the basis of the order of the Judicial Committee, defining the extent and character of liability of the Shebait to render an account specifying the mode, the period and the properties affected. It was held by the learned Judges that the order of the Subordinate Judge was in the nature of a preliminary decree within the meaning of Section 2(2), Code of Civil Procedure and was appealable. On behalf of the appellants reference was made to the Full Bench decision in Ramgolam Sahu v. Chintaman Singh, ILR 5 Patna 361: (AIR 1926 Pat 218) but that case is not in point. The question at issue in that case was whether an application for ascertainment of mesne profits in accordance with the directions contained in a preliminary decree was or was not a plaint within the meaning of Order 7, Rule 11, Code of Civil Procedure. It was held in that case that it was not a plaint, and though Jwala Prasad J. said in the course of his judgment that the order" rejecting such an application was not a decree there is no pronouncement on this point by the other Judges constituting the Full Bench. In our opinion, the present case is governed by the decision of the Privy Council in ILR 23 All 152 and by the decision of the Calcutta High Court in (AIR 1924 Cal 160) which in our opinion, lay down the correct law on the point.

(3.) It follows, therefore, that there is no merit in the present appeal which must be dismissed with costs.