P L D 1964 Dacca 633 (PLP)

As against that the plaintiff filed an appeal but there was no cross‑objection and the learned Subordinate Judge disposed of the appeal with the following order: "The appeal be allowed on contest without costs. The judgment and decree of the learned Munsiff be modified. The plaintiff' do get a decree for 1'08 acres of land in the Jama of Rs. 8‑8‑8 pies belonged to 4 brothers Khoaj Fakir, Newa7 Fakir, Sharitulla Fakir and Mojaffar Fakir and for that land he will get a separate saham after partition. The partition should be effected looking to the conveniences and inconven iences keeping the present possession of the parties in fact as far as practicable. The parties do bear their costs up to this stage." There is no dispute tap to this stage. Thereafter it is admitted by Mr. Saba, the learned Advocate for the respondent decree-holder that the decree‑holder filed an application before the executing Court for execution of the decree for mesne profits. Objection was taken by the judgment‑debtor under section 47 of the Code. The executing Court allowed the Miscellaneous case ; upheld the contention of the judgment‑debtor, namely, that the executing Court had no jurisdiction to determine the mesne profits. As against that the decree‑holder preferred an appeal. The learned Subordinate Judge relying on several decisions was of opinion that the executing Court could ascertain the mesne profits and start the execution case. The authorities cited by the learned Subordinate Judge will be taken into consideration while discussing the arguments of the learned Advocate for the respon dents.

4. As pointed out above the trial Court while disposing of the suit for partition only observed that mesne profits should be determined in a subsequent proceeding and the same order was confirmed by the Appellate Court as that portion of the trial Court's order was not disturbed by the lower Appellate Court nor was there any cross‑objection at the instance of the defendants. After these two judgments both by the trial Court as well as by the Appellate Court only thing that remained for consideration was the question of mesne profits. According to the provision of Order XX, rule 12 of the Code of Civil Procedure a Court may pass a decree for mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such mesne profits. But the order that was passed by the learned Munsiff in the suit in the first instance did not pass a decree in accordance with the provision of rule 12 (b) of Order XX, nor is there any evidence on record to show that the provision of sub‑rule (2) of rule 12 of Order XX. has been complied with. Sub‑rule (2) runs as follows :‑

"Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry." It is admitted that no final decree has been passed in respect of he mesne profits even assuming that the decree that was passed by the learned Munsiff was a preliminary decree for mesne profits.

5. The trial Court relying on the provisions of the Code was of opinion that as there was no final decree passed in the suit there could not be any question of proceedings for executing a decree or determining the amount of mesne profits. In order to get rid of the provision of Order XX, rule 12 quoted above, the learned Subordinate Judge relied on the cases of Ganga Prasad Dutt v. Rani Hemangini Debi (37 I C 997), T. S. Swaminatha Udayar v. T. S. Gopalaswami Odayar and others (A I R 1939 Mad. 81) and Annada Kumar Roy and another v. Sheikh Madan and others (38 C W N 141), and the case of The Commissioner for the Port of Calcutta v. Prohladari Chooriwallah (42 C W N 748).

6. I have gone through the cases and none of the cases i9 directly of any help to the respondents. In the above Calcutta case and the case reported in 37 1 C 997 it has been observed that the Court while passing the preliminary decree directed that the mesne profits might be determined by the executing Court. On the basis of such decree an application was filed before the executing Court for the said purpose and an objection was taken that the executing Court had no jurisdic tion. This contention of the objector was repelled by observing that as the preliminary decree contained such order against which there was no appeal preferred the said question could not be allowed to be agitated. But in the present case the decree that was passed in the first instance or by the Appellate Court does not contain any direction to the executing Court for deter mining mesne profits, rather the ordering portion of the trial Court goes to show that the question of mesne profits should be determined In a subsequent proceeding.

7. Now coming to the case A I R 1939 Mad. 81 mentioned above, that case also has no bearing to the facts and circumstances of the case. In that case though a preliminary decree was not passed a final decree was passed and in the facts and circumstances of that case it was held that as the parties were not prejudiced by such a decree no objection could be taken to that.

8. Now having in view the decree that was passed by the trial Court, I find that the executing Court was not autho rised to determine the mesne profits but it was directed that the mesne profits should be determined by a subsequent proceeding. It is further apparent that in view of the provision of Order XX, rule 12 (2), there should have been a final decree passed at the instance of the decree‑holder, but it is admitted by the learned Advocate that no such final decree has been passed at the instance of the decree‑holder. Hence in any view of the matter, the executing Court has no jurisdiction either to deter mine the mesne profits on an application filed before it or execute a decree on any finding on such an application.

9. The second objection is a preliminary objection to the effect that as the appellant did not file the cost sheet as has been prepared in this case, the appeal is incompetent as the provision of Order XLI, r. 1 of the Code has not been complied with. Mr. Das, the learned Advocate for the appellant, contends that this argument of the learned Advocate for the respondents has no substance inasmuch as the order that is passed under section 47 of the Code is a decree under section 2 of the Code that he has already filed the complete order sheet though he has not filed the cost sheet and as such there cannot be any objection as to the maintainability of the appeal. It is seen from the cost‑sheet which is at page 52 of the record that it does not relate to the final adjudication of the rights of the parties but the judgment that has been filed along with the memorandum of appeal. In these circumstances, I do not find any substance in the preliminary point. The appeal is accordingly allowed with costs. The judgment and order of the lower Appellate Court are set aside and those of the trial Court are restored. S. Q. Appeal allowed.