(BY SRI. SRIDHAR H., ADVOCATE FOR RESPONDENT NOS.1 TO 4;
SRI. VIGHNESHWAR S. SHASTRI, SENIOR ADVOCATE FOR SRI.
GURURAJ R., ADVOCATE FOR RESPONDENT NO.2;
VIDE ORDER DATED 09.09.2022, NOTICE TO RESPONDENT NOS.5
TO 10 IS DISPENSED WITH;
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
08.07.2022, PASSED BY THE LEARNED 1ST ADDL. SENIOR CIVIL
JUDGE AT CHIKKAMAGALURU, ON I.A.NO.1 IN EXECUTION PETITION
NO.76/2020 AT ANNEXURE-G.
IN W.P. NO.2197/2020:
3. A.D.PRAMEELA
D/O LATE A.R.DEVEGOWDA,
AGED ABOUT 45 YEARS,
R/O AVATHI VILLAGE AND POST,
CHIKKAMAGALURU TALUK.
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4. A.D.PRAVEETHA
D/O LATE A.R.DEVEGOWDA,
AGED ABOUT 43 YEARS,
R/O AVATHI VILLAGE AND POST,
CHIKKAMAGALURU TALUK.
...PETITIONERS
(BY SRI. VAIDYA RAVI LAXMINARAYANA, ADVOCATE)
AND:
1. SMT. KENCHAMMA
W/O LATE PUTTASWAMYGOWDA,
AGED ABOUT 72 YEARS,
AVATHI VILLAGE,
CHIKKAMAGALURU TALUK
2. A.P.SUNDARESH
S/O LATE PUTTASWAMYGOWDA,
AGED ABOUT 41 YEARS,
AVATHI VILLAGE,
CHIKKAMAGALURU TALUK
3. SMT. A.P.SUDHA
W/O MANJUNATHA
AGED ABOUT 44 YEARS,
R/O THALIHALLA VILLAGE,
JAKKANAHALLI POST,
CHIKKAMAGALURU TALUK.
4. A.P.SUMA
D/O LATE PUTTASWAMYGOWDA,
AGED ABOUT 72 YEARS,
AVATHI VILLAGE,
CHIKKAMAGALURU TALUK.
5. LATE A.R.DEVEGOWDA
S/O RAMEGOWDA,
AVATHI VILLAGE AND POST
CHIKKAMAGALURU TALUK
SINCE DEAD BY LRS
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5(a) NAGESH GOWDA,
S/O LATE A.R.DEVEGOWDA,
AGED ABOUT 58 YEARS,
R/O AVATHI VILLAGE AND POST
CHIKKAMAGALURU TALUK
5(b) A.D. KAMALA
D/O LATE A.R. DEVEGOWDA,
W/O K.S. CHANDREGOWDA,
AGED ABOUT 56 YEARS,
R/O KESUVINAMANE,
MUGTHIHALLI POST,
CHIKKAMAGALURU TALUK
5(c) A.D. KITTEGOWDA
S/O LATE A.R.DEVEGOWDA,
AGED ABOUT 58 YEARS,
R/O AVATHI VILLAGE AND POST
CHIKKAMAGALURU TALUK
...RESPONDENTS
(NOTICE SERVED ON RESPONDENT NOS.1 TO 4, 5(a) AND 5(b);
VIDE ORDER DATED 16.09.2022, NOTICE TO RESPONDENT NO.5(c)
IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
19.03.2019 PASSED BY THE LEARNED 1ST ADDL. SENIOR CIVIL
JUDGE AT CHIKKAMAGALURU, IN CIVIL MISC. PETITION NO.39/2014
AT ANNEXURE-E AND RESULTANTLY QUASH THE AWARD DATED
25.03.2019 PASSED IN SAID CIVIL MISC. PETITION NO.39/2014 AT
ANNEXURE-F.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 20.12.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE R. NATARAJ
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CAV ORDER
W.P.No.2197/2020 is filed by the respondent Nos.1(c) to
1(f) in Civil Misc. Petition No.39/2014 on the file of the I
Additional Senior Civil Judge, Chikkamagaluru, challenging an
order dated 19.03.2019 by which, the petition filed by the
respondent Nos.1 to 4 herein under Order XX Rule 12 read with
Section 2(12) and Section 151 of the Code of Civil Procedure,
1908 (henceforth referred to as 'CPC') was allowed in part and
the petitioners herein were directed to pay mesne profits of
Rs.24,47,166/-. They have also challenged an award dated
25.03.2019 passed in Civil Misc. Petition No.39/2014.
2. W.P.No.15599/2022 is filed by the respondent
No.1(c) in Ex.No.76/2020 pending consideration before the I
Additional Senior Civil Judge and JMFC, Chikkamagaluru,
challenging an order dated 08.07.2022, by which, an
application (I.A.No.1) filed by him under Section 47 of CPC was
dismissed.
3. (i) The respondent Nos.1 to 4 herein filed
O.S.No.21/1997 before the Civil Judge (Sr. Dvn.),
Chikkamagaluru for partition and separate possession of their
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shares in the suit properties. The suit was decreed on
06.06.2005. It was held that there shall be a separate enquiry
regarding mesne profits. The preliminary decree culminated in
a final decree in FDP No.32/2005 on 19.07.2014. However, no
enquiry was held to determine the mesne profits. The
respondent Nos.1 to 4 herein filed Ex.No.98/2014 for delivery
of possession of the properties demarcated towards their share.
The executing Court executed the decree, which was closed and
fully satisfied on 16.06.2017.
(ii) On 01.12.2018 the respondent Nos.1 to 4 herein
filed Civil Misc. Petition No.39/2014 under Order XX Rule 12
read with Section 2(12) and Section 151 of CPC for a direction
to the petitioners herein and others to pay mesne profits of
Rs.1,73,25,000/- with interest at the rate of 21% per annum
from the date of suit till realization. The petitioners herein
objected to the proceeding. However, the Court allowed the
Civil Misc. Petition in part vide its order dated 19.03.2019 and
held that the respondent Nos.1 to 4 herein were entitled to
mesne profits of Rs.24,47,166/- with interest at 6% per
annum, from the date of the petition till realization. The Court
treated it as an award.
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(iii) The respondent Nos.1 to 4 herein filed Review
Petition No.5/2019 and sought review of the order dated
19.03.2019 passed in Civil Misc. Petition No.39/2014 and
sought enhancement of the mesne profits. The petitioners
herein objected to the same. The Court was pleased to dismiss
the review petition by an order dated 16.12.2019.
4. The petitioners are therefore before this Court in
W.P.No.2197/2020 challenging the order dated 19.03.2019
passed in Civil Misc. Petition No.39/2014 awarding mesne
profits of Rs.24,47,166/- and the decree/award dated
25.03.2019.
5. The respondent Nos.1 to 4 filed Ex.No.76/2020 to
enforce the decree/award passed in Civil Misc. Petition
No.39/2014. The petitioner in W.P.No.15599/2022 filed an
application (I.A.No.1) under Section 47 of CPC for dismissal of
the execution petition on the ground that the decree sought to
be executed was void. The said application was resisted by the
respondent Nos.1 to 4 herein. The executing Court rejected
the said application vide order dated 08.07.2022. Being
aggrieved by the same, W.P.No.15599/2022 is filed.
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6. The learned counsel for the petitioners in both writ
petitions contended as follows:
(i) that the preliminary decree specifically declared
that there shall be an enquiry in mesne profits.
However, in the final decree that was passed,
there was no enquiry regarding mesne profits.
(ii) that when once a final decree was passed, it
puts an end to the dispute between the parties
and it terminates the rights of the parties.
Therefore, it is not open for the respondent
Nos.1 to 4 herein to claim the relief of mesne
profits after a final decree was passed.
(iii) that the final decree was executed in
Ex.No.98/2014 and was closed as fully satisfied.
Therefore, nothing survived for consideration.
Thus, the learned counsel contended that the
respondents Nos.1 to 4 herein could not have
filed Civil Misc. Petition No.39/2014.
(iv) that the Court had absolutely no jurisdiction to
entertain a petition under Order XX Rule 12 read
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with Section 2(12) and Section 151 of CPC for an
enquiry into mesne profits.
(v) that the Order XX Rule 12 and Section 2(12) of
CPC were not applicable in respect of a suit for
partition. Therefore, he contended that the
impugned order was void ab initio and
unenforceable in the eyes of law.
7. In support of his contention, the learned counsel for
the petitioners relied upon the judgment of the Hon'ble
Supreme Court in the case of Kattukandi Edathil Krishnan
and another vs. Kattukandi Edathil Valsan and others
[(2022) 7 S.C.R. 1120] to contend that the proceedings in a
partition suit come to end after the decree is fully executed. He
further relied upon the judgment of the Madras High Court in
the case of Gnanaprakasa Mudaliar and others vs. B.
Anandathandavan and others [1998 SCC OnLine Mad.
229] and contended that the preliminary decree should contain
the relief of mesne profits and even if it is not so, it is open for
the parties to seek for an enquiry during the pendency of the
suit till the passing of the final decree. He therefore, contended
that the impugned order passed by the Trial Court after the due
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satisfaction of the final decree was improper. He also relied
upon the judgment of a Division Bench of this Court in the case
of Parvathi and another vs Venkatramana Prasad and
others [ILR 2003 KAR 2304] and contended that the Order
XX Rule 12 of CPC does not apply to suits for partition. He also
submitted that concept of mesne profits is applicable only to
cases of wrongful possession and not in cases of partition,
where a co-owner is only bound to tender accounts for the
profits derived from the joint family property in excess of his
share. He therefore, contends that the Trial Court committed an
error in entertaining the Miscellaneous Petition filed by the
respondent Nos.1 to 4.
8. (i) In response, the learned Senior counsel for
the respondent No.2 in W.P.No.15599/2022 submitted that the
preliminary decree passed in O.S.No.21/1997 also provided for
a separate enquiry in respect of mesne profits. He submitted
that the final decree was in respect of the immovable
properties. He contends that there can be more than one final
decree and the Civil Misc. Petition No.39/2014 was for recovery
of mesne profits, which was not prohibited in law.
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(ii) The learned Senior counsel for respondent No.2 in
W.P.No.15599/2022 further contended that in identical
circumstances, the Hon'ble Supreme Court in the case of
Choudappa and another vs. Choudappa since deceased
by Lrs. and others [(2024) 9 SCR 229] held as follows:-
"It is in the light of the aforesaid provision
that the Court of first instance while passing the
judgment and order dated 12.07.1973 had
specifically stated as under: -
"An inquiry be held regarding future mesne
profits of the said suit lands from the date of the
suit, that is 24-9-1963 under Order 20 Rule 12(a)
C.P.C."
Now, such an inquiry is nothing but a
continuation of the suit and is in the nature of
preparation of the final decree and as such, it
cannot be said that any application moved as a
reminder for completing the inquiry is barred by
limitation or is liable to be dismissed on the ground
of delay or laches."
(iii) The learned Senior counsel for respondent No.2 in
W.P.No.15599/2022 therefore, contended that Civil Misc.
Petition No.39/2014 was rightly filed and the Court after an
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enquiry, rightly held that the petitioners herein and others were
liable to pay mesne profits of Rs.24,47,166/- with interest at
the rate of 6% per annum.
9. I have considered the submissions of the learned
counsel for the petitioners in both the writ petitions and the
learned Senior counsel for respondent No.2 in
W.P.No.15599/2022.
10. A perusal of the preliminary decree passed in
O.S.No.21/1997 shows that the decree was not only in respect
of immovable properties but also was in respect of mesne
profits. The Trial Court held that a separate enquiry shall be
held in respect of mesne profits. The final decree passed in FDP
No.32/2005 was only in respect of the immovable properties.
There can be no denial of the position of law that there could
be more than one final decree in a suit for partition. When the
preliminary decree itself mentioned that there shall be an
enquiry regarding mesne profits, the final decree Court was
bound to enquire into the mesne profits. As rightly contended
by the learned Senior counsel for respondent No.2 in
W.P.No.15599/2022, the Hon'ble Supreme Court in
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Choudappa and another, referred supra, was considering a
case involving identical facts, where in a suit for partition a
preliminary decree was passed, which inter alia provided for
holding an enquiry regarding mesne profits. The plaintiffs in the
suit after obtaining a final decree, obtained possession of the
landed properties. Thereafter, they filed an application under
Order XX Rule 12 of CPC for determination of the mesne
profits. The defendants in the suit moved an application under
Order VII Rule 11(d) of CPC contending that the application
filed under Order XX Rule 12 of CPC was barred by the law of
limitation. The Trial Court rejected the application and the High
Court confirmed it. The Hon'ble Supreme Court relied upon the
judgment in the case of Kattukandi Edathil Krishnan and
another, referred supra, and held that there is no need to file
any separate application for the preparation of the final decree
and therefore, the same principle could be applied in cases,
where a decree is passed to hold an enquiry to determine the
mesne profits.
11. Under the circumstances, there is no error in the
respondent Nos.1 to 4 filing Civil Misc. Petition No.39/2014.
Consequently, the impugned order dated 19.03.2019 passed by
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the I Additional Senior Civil Judge, Chikkamagaluru in Civil
Misc. Petition No.39/2014 directing the petitioners herein and
others to deposit mesne profits of Rs.24,47,166/- with interest
at the rate of 6% per annum from the date of petition till
realisation is just and proper and consequently, the decree
dated 25.03.2019 passed therein is also valid and does not call
for any interference.
12. Hence, W.P.No.2197/2020 is dismissed.
13. Similarly, the order dated 08.07.2022 passed by
the I Additional Senior Civil Judge and JMFC, Chikkamagaluru in
Ex.No.76/2020 is also just and proper and warrants no
interference.
14. Consequently, W.P.No.15599/2022 is dismissed.
15. In view of dismissal of the writ petitions, pending
I.As., if any, do not survive for consideration and the same
stand dismissed.
Sd/-
(R. NATARAJ)
JUDGE
PMR
