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Civil procedure - definitions

Supreme Court of India

Diwan Bros vs Central Bank Of India, Bombay And ... on 7 May, 1976

Firstly, that under the definition of a "decree" contained in s. 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary:

(i) that the adjudication must be given in a suit;

(ii) that the suit must start with a plaint and culminate in a decree; and

(iii)that the adjudication must be formal and final and must be given by a civil or revenue court.

In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly, the Legislature has itself made a clear- cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit. In these circumstances, therefore, none of the requirements of a decree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of The Court Fees Act. The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree".

Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy. The argument of Mr. Sanghi for the respondent., the he Legislature wanted the claimants to pay heavy court-fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act. If the displaced claimants were given the right to have their claims determined on a nominal court-fee and if only one right of appeal was provided it surpa, ses one's comprehension why the Legislature should have. intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court-fees if they wanted to file an appeal to the High Court. If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.

Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, Art. 11, is referable to a decree as defined in s. 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are not leviale.

Apart from the above considerations, it is a well- settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well-known legal contation it must be premised to have used the said expression in the sense in which it has been so understood. Craies on "Statute Law" observes as follows:

"There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears."

In Barras v. Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows:

"It has long been a well-establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it."

Craies further points out that the rule as to world judicially interpreted applies also to words with well-known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.

Supreme Court of India

Venkata Reddi And Others vs Pothi Reddi on 30 November, 1962

Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed "The mere declaration of the rights of the plaintiff by the preliminary decree, would, in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final."

Similarly, a final decision would mean a decision which would operate as res judicate between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mort- gage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees--a preliminary decree and a final decree-the decree which would be executable would be the final decree But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to s. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is' precluded from disputing its. correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court pass- ing that decree.

Supreme Court of India

Shankar Balwant Lokhande (Dead) ... vs Chandrakant Shankar Lokhande & ... on 20 March, 1995

(In this case the crucial question for consideration was as to when the limitation begins to run for filing an application to pass final decree on stamped papers. Result - appeal allowed

Direction given - " The trial court is directed first to pass the final decree and then to engross the same on the stamped papers already supplied by the appellants; if further stamped papers be needed, reasonable time would be given to supply the same. The final decree would then be drawn thereon. The court would, thereafter, proceed with the execution of the final decree in accordance with law.")

"Order 20 Rule 7 of CPC envisages that the decree "shall bear the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree". Section 2(2) of CPC defines "decree" to mean "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". A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pur- suant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Final decree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of It is in the latter sense the word "decree" is used in, s.2(2) of CPC. The appealability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into fulfillment the pre- liminary decree.

Order 20 Rule 18 envisages passing of a decree for partition of property or for separate possession of a share therein. Sub-r. (2) is material which provides that "if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required". (Emphasis ours) Thus, it could be seen that where the decree relates to any immovable property and the partition or separation cannot be conveniently made without further inquiry, then the court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The court is also empowered to give such further directions as may be required in this behalf A preliminary decree in a partition action, is a step in the suit which continues until the" final decree is passed. In a suit for partition by a coparcenar or cosharer, the court should not give a decree only for the plaintiffs share, it should consider shares of all the heirs after making them parties and then to pass a preliminary decree. The words "declaring the rights of the several parties interested in the property" in sub-rule(2) would indicate that shares of the parties, other than the plaintiff(s), have to be taken into account while passing preliminary decree. Therefore, preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property, which is the subject- matter of the suit. The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper.

Therefore, it would be clear that where decree or order has been passed jointly against more persons than one, the application shall take effect against them all, even if it is made by one or more. It is seen that the preliminary decree is a declaration of the rights of the parties with a charge on the properties to be allotted and a Commissioner is required to be appointed for partition of certain specified properties. Therefore, as envisaged in sub-r. (2) of Rule 18 of Order 20, it was only a preliminary decree declaring the rights of the parties with power to the court to give further directions in that behalf It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallised and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in term's of the shares of the parties declared in the preliminary decree.

It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. The final decree made in favour of the first respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of 1/6th and 5/6th shares of the first respondent and the appellants so as to entitle the party to make an application for execution of the final decree.

In Rameshwar Singh-Decree holder v. Homeswar Singh- Judgment-debtor, AIR 1921 Privy Council 3 1, the facts, in nutshell, were: There was a joint liability for the payment of some amount under a grant. A decree in that behalf was passed and the property was sought to be proceeded against the, estate for execution. The contention was that since a decree was made earlier which was executable but no appli- cation was made within limitation, the decree became unexecutable, being barred by limitation. That was accepted by the High Court. On appeal, the Judicial Committee held that "in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced". The decree being limited in its scope, it was held that limitation did not begin to run from the date of decree as drawn. The contention of Smt.Jaishree Wad, learned council for the respondent, is that the Privy Council upheld the principle of making an application within three years from the date when the right to apply accrues, as provided in Article 181 of the old Limitation Act, the ratio of the aforesaid case applies to the facts in this case since the application had not been made within three years or within 12 years and so, it was hopelessly barred by limitation. She placed reliance on the judgment of this Court in Yeshwant v. Walchand, AIR 1951 SC 17 also, and on judgments in Maksudan Prasad v. Smt. Lakshmi Devi, AIR 1983 Patna 105, Pandivi Satyanandam v P. Nammayya AIR 1938 Madras 307, and Basamma v. Shivamma, AIR 1963 Mysore 323.

As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Commissioner to be appointed in this behalf Admittedly, no Commissioner was appointed and no final decree had been passed relating to all.

In Yashwant's case (supra), the facts were that preliminary decree for accounting was passed in a suit for rendition of account of partnership. There was deficit court fee payable. It was contended that until the payment of deficit court fee was made, right had not been accrued to draw the final decree and that therefore, limitation begins to run only from the date of paying the deficit court fee. This court negatived the contention and held that the preliminary decree was not a conditional decree and its enforceability was not dependent upon the future act namely payment of the deficit court fee; and payment thereof at a later date would not provide fresh limitation to run from that date."

Supreme Court of India

Dhani Ram Gupta & Ors vs Lala Sri Ram & Anr on 7 December, 1979

Section 2(3) defines "decree-holder" as meaning "any person in whose favour a decree has been passed or an order capable of execution has been made". Section 51 provides that the Court may, on the application of the decree holder order execution of the decree by various methods. Section 146 provides that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Order XXI of the Code of Civil Procedure deals with execution of decrees and orders and Orders XXI r. 2 in particular provides for payment or adjustment out of Court and for the recording of satisfaction of the decree by the Court in whole or in part as the case may be. Order XXI r. 16 with which we are primarily concerned is as follows:

"16. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferred and the judgment debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others."

Delhi High Court

Sushila Devi vs Vijay Kumar on 27 July, 2010

The burden of proof with respect to the profits which the defendant is likely to receive on account of wrongful possession of the suit property is on the plaintiff. Though the burden with respect to what is actually received as profit is on the defendant being a fact within the defendant's special knowledge.

See Ramakka vs V. Nagesam AIR 1925 Mad. 145 at page 146 and Harendra Nath Mukherji & Ors. vs Hari Pada Mukherji & Ors. AIR 1939 Cal. 387 at page 393. The relevant observations made in Ramakka (supra), on this issue are as follows:-

"The profit which a person actually received is a matter within the peculiar knowledge of that person and, under Section 106 of the Evidence Act, the burden of proving the amounts actually received will lie on the person who received them; but the burden of proving the profits that the person in occupation might have received will lie on the person who claims them." (emphasis is mine) The dicta with respect to burden of proof of proving mesne profits was followed by the Calcutta High Court in Harendra Nath Mukherji (supra). The relevant observations being:

"The learned advocate on the authority of a decision of the I Madras High Court in Ramakka v. Nagesam AIR1925Mad145 contended that the defendant being admittedly in possession of the property, the onus was upon him to show what amount he actually got from the two houses after the death of the widow. In that case it was held that a. person who had a special knowledge of certain facts must prove them. Section 106, Evidence Act, says so. In that case it was also held that if a certain amount was claimed by the plaintiff as mesne profits on the footing that that amount the defendant could get from the property with due diligence, the onus was upon the plaintiff to prove what amount the defendant could have got from this property with due diligence. It is true that the defendant has adduced no evidence to show what amount actually he received during the period of his possession. The plaintiffs have also adduced no evidence to show what amount the defendant could have got from the properties. Under the circumstances it is impossible for the Court to determine the amount of mesne profits and the claim for mesne profits must therefore fail for want of evidence. The trial Judge was therefore right in dismissing the claim for mesne profits. The cross-objections, so far as mesne profits are concerned, are therefore dismissed."

8.1 On this aspect, however, one may only note the testimony of DW-1, wherein it has emerged that the super-structure built on the suit property, inter-alia comprises of three shops. Out of the three shops, one had been let out at Rs 440/- p.m. while, the other two had been let out at Rs.250/- p.m. The total rent which the defendant had earned was Rs 940/- p.m. In so far as, the shop which earned Rs 450/- p.m., it is stated that it has been let out for about 7-8 years, while the remaining two shops have been on rent for the past 20 years. In the absence of plaintiff leading evidence on the issue it is not known whether the shops are of equal area; the facilities available therein; as also other incidents attached to the said property (i.e., the shops) which are, crucial for determination of mesne profits. Therefore, in my view, if the lowest base rent is applied to all the three shops, i.e. Rs 250/- p.m. , plaintiff should be entitled to mesne profit of Rs 750/- p.m from 25.01.1996; which is when the plaintiff issued a legal notice to the defendant.

Supreme Court of India

Lucy Kochuvareed vs P. Mariappa Gounder And Ors. on 7 February, 1979

Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and "the Court may mould it according to the justice of the case". Even so, one broad basic principle governing the liability for mesne profits is discernible from Section 2(12) of the CPC which defines 'mesne profits' to mean "those profits which the person in wrongful possession of 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". From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiff's dispossession, or his being kept out of possession can be regarded as a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates.

In such a case where the claim for mesne profits is against several trespassers who combined to keep the plaintiff out of possession; it is open to the Court to adopt either of the two courses. It may by its decree hold all such trespassers jointly and severally liable for mesne profits, leaving them to have their respective rights adjusted in a separate suit for contribution; or, it may, if there is proper material before it, ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings.

Another principle, recognised by this Court in Chitturl Subbanna v. Kudapa Subbanna (ibid) is that a decree under Order XX Rule 12 of the Code, directing enquiry into mesne profits, howsoever expressed, must be construed to be a decree directing the enquiry in conformity with the requirements of Rule 12(1)(c), so that the decree-holder is not entitled to mesne profits for a period (commencing from the date of the institution of the suit) extending beyond three years from the date of the preliminary decree.

Again, possession through another, such as a tenant, may be sufficient to create liability for mesne profits if such possession is wrongful.

Supreme Court of India

Mahant Narayana Dasjee Varu And ... vs Board Of Trustees, The Tirumalai ... on 10 September, 1964

It is, no doubt, true that the rate of interest to be allowed in regard to mesne profits or under Section 34 in such cases is discretionary, seeing there is, in them no question of any contractual rate or any particular rate fixed by statute. The only limitation which is prescribed by Section 34 as it stands now is that the rate shall not exceed 6 per cent p.a. -- a limitation which did not figure in the section before its amendment though Courts as, a general rule seldom awarded any rate in excess of 6 per cent p.a.

01. Civil procedure - definitions
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