- (1.) The plaintiff/petitioner filed a suit for eviction, recovery of possession and mesne profits. The case of the plaintiff was that the defendant No. 1, Hindusthan Fertiliser Corporation Limited was a monthly tenant under her in respect of the ground floor flat at premises No. 432/1, Prince Anwar Shah Road, Calcutta-45 at a monthly rental of Rs. 850/- payable according to English Calander Month. Such tenancy of the defendant No. 1 was on condition that the defendant No. 1 will put it's particular officier or employee, the defendant No. 2 to occupy the suit premises for residential purposes only. The defendant No. 2, upon his retirement from the service of the defendant No. 1 will be bound to deliver the vacant possession of the suit premises to the plaintiff/petitioner. It was further pleaded that the tenancy of the defendant No. 1 was required to be surrendered with effect from30-9-87 upon retirement of the defendant No. 2 from the employment of defendant No. 1. In the said suit the plaintiff/petitioner prayed for a decree against both the defendants for eviction of the defendant No. 1 and his agent and/or licencee and for recovery of Khas possession of the suit premises and for mesne profits for wrongful use and occupation of the suit properties from 1-6-88 up to the date of delivery of possession in terms of Order 20, Rule 12 of the Code. The defendants though appeared in the suit but did not ultimately contest the same. Accordingly, the suit was decreed ex parte. The last paragraph of the judgment stated in precise terms as under :- "that the suit be decreed ex parte without any costs. The defendant No. 2 be ejected from the suit premises.Defendant is allowed 15 days time to vacate the suit property and to hand over Khas possession threof in favour of the plaintiff.Plaintiff do also get a decree for mesne profit @ Rs. 1100/- p.m. from 1-6-88 till delivery of possession on payment of proper court-fees."
(2.) It is not in dispute that pursuant to the said decree defendant No. 2 vacated the suit promises on 2-9-95. The plaintiff/petitioner filed a petition under Order 20, Rule 12 of the Civil Procedure Code in the suit itself on 18-12-95. The same was disposed of by the impugned determination dated 6-12-99. The learned trial Court held that the plaintiff is entitled to get the decree of mesne profits amounting to Rs. 95,700/- for the period from 1-6-88 to 30-1-95 @ Rs. 1100/- per month against the defendant No. 2 only, on payment of proper court-fees. The said determination dated 6-12-99 is under challenge in this revisional application on the ground that in view of the case made in the plaint and the ex parte decree passed in the suit, the plaintiff/petitioner is entitled to the aforesaid amount of mesne profit, against both the defendants jointly and severally as they were jointly and severally liable for payment of the same in respect of the suit permises as per the terms of the agreement between the parties and the ex parte decree passed by the court below.
(3.) Without going into the merits of the determination as aforesaid it is necessary to see whether such a determination is a decree or not, because if the same amounts to a decree then the present revisional application will be incompetent.;