Q : 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.
22nd Bihar Judicial Service Exam. 1986
State Bank Law Officer Exam. (Based on memory).
Ans: The decree passed in A’s favour is partly preliminary and partly final—Order 20,Rule 12 (Decree for possession and mesne profits) and Supreme Court in Lucy v. Mariappa, AIR 1979 SC 1214 (1220).
Reasons: Section 2(2) gives the definition of the term ‘Decree’. In this respect it is notable that the concluding part of ‘Explanation’ attached to Section 2(2) makes it clear that a decree may be partly preliminary and partly final.
The question of a decree which is partly preliminary and partly final arises only when the court decides two issues by only one decree.
It is also notable that in case of suit of recovery of possession of immovable property (Land) with mesne profits generally the decree is passed under Order 20, Rule 12 for recovery of possession of the property with a direction to make an enquiry regarding mesne profits, thus, in such a case the court decides two issues by one decree. In this case the decree for the possession of immovable property is final and enquiry regarding mesne profits is preliminary.
The Supreme Court of India also, in famous case of Lucy v. Mariappa referred above, held that in case of the 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 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.
From the above discussions (Order 20, Rule 12 and decision of Supreme Court in Lucy v. Mariappa) it is clear that in the given case the decree passed by court in favour of ‘A’ for recovery of possession of land with mesne profits 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 v. Snehalata, AIR 1947 C 68, it was held that if future mesne profits can be ascertained without the need of further enquiry a preliminary decree need not be passed. But it is a rare and exceptional circumstance which occurs in a case of 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 immovable property.
Note: (1) See Order 20, Rule 12 for more details.
(2) Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession—-Section 2(12) of Civil Procedure Code.
Source : Kishor Prasad, Problems and Solutions on Civil Laws