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Report No. 178

3. Order 20 Rule 12 and Order 20 Rule 18 of the Code of Civil Procedure(a) Order 20 Rule 12:-

Order 20 Rule 12 of the Code refers to the manner in which a decree may be passed in a suit for possession of immovable property and for rent/ profits. Sub clauses (a) to (c) of sub section (1) and sub section (2) of Order 20 Rule 12 refer to the procedure as follows:

"Rule 12 Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decre.-

(a) for the possession of the property;

(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;

(ba) for mesne profits or directing an inquiry as to such mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit unti.-

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or 23

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) 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."

In practice, in most courts, a decree is passed for possession and so far as past or future rents or mesne profits are concerned, an inquiry is directed. Usually, this inquiry hangs on for years in as much the court appoints advocate commissioners, they give reports after recording evidence, the objections are heard by the courts and a final decree is later passed after several years. Experience shows that once a decree for possession is passed and preliminary decree for the rents/ mesne profits is passed, the matter is not given importance and final decrees usually take 5 years or more to be passed after the preliminary decree. The suit might have been pending for years earlier and if profits or rents are ascertained long after the preliminary decree, the delay leads to serious injustice.

Now when a suit for possession comes up for trial, if the parties are compelled to adduce evidence not only in regard to their right to possession but also in regard to the rents or mesne profits for the period prior to suit (if any) up to the date of commencement of the trial, (which normally takes place several years after the institution of the suit) and if the Court of first instance is required to record findings on the rents and profits that may be payable to the plaintiff for the period prior to suit up to the date of 24 commencement of trial, irrespective of whether the Court of first instance is passing a decree for possession or not, such evidence and such findings which are on record will be for the benefit of the parties, in the event of any of the appellate courts subsequently setting aside a dismissal of the suit and granting a decree for possession.

In other words, there will be evidence and findings on record in regard to the income or mesne profits payable to the plaintiff for the period prior to the suit up to the date of commencement of the suit and again up to the date of commencement of trial and these findings will be given by the Court of first instance even if it is not granting a decree for possession. In case any appellate court grants a decree for possession the evidence and the findings in regard to the income or mesne profits will enable the appellate court to pass appropriate orders in regard to such income or mesne profits.

In fact, it is a practice for courts in several States to record evidence of rents or mesne profits, at the trial, and give findings thereon, irrespective of whether a decree for possession is passed or not.

It is well settled that a decree can be partly preliminary and partly final. Even in the case of suits for possession there may be more than one decree for possession where for example parties agree or there is no contest with regard to some items of the property. In such cases there can be more than one decree for possession and more than one preliminary decree in regard to inquiry into rents or mesne profits of different items of property. Sometimes the inquiry into rents or mesne profits may be done separately 25 for different periods of time. That is why it is stated that there can be more than one preliminary decree or more than one final decree.

We therefore propose to substitute the following provision for Order 20 Rule 12:

"12. Decree for possession and mesne profit.- (1) Where a suit is for recovery of possession of immovable property and for rents or mesne profits, the parties shall, in addition to adducing evidence in the Court of first instance, as to their right to possession, adduce evidence also in regard to the rents or mesne profits for the period prior to the institution of the suit (if any claimed), up to the date of commencement of trial and the said Court shall, irrespective of whether a decree for possession is passed or not, record findings as to the rent or mesne profits that may be payable to the plaintiff for the aforesaid period, in the event of a decree for possession being passed..

(2) The Court may pass a decre.-

(a) for possession of the property;

(b) for the rents or mesne profits which have accrued on the property during the period prior to the institution of the suit up to the date of commencement of trial;

(c) directing an inquiry into the rents or mesne profits from the date of commencement of trial until,

(i) the delivery of possession to the decree holder; or

(ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the Court or

(iii) the expiration of three years from the date of the decree whichever event first occurs.

(3) Where an inquiry is directed under clause (c) of sub-rule (2), a final decree in respect of the rents or mesne profits, shall be passed in accordance with the result of such inquiry.

(4) Where an appellate Court orders an inquiry as stated in clause (c) of sub rule (2), it may direct the Court of first instance to make the inquiry and in every case, the Court of first instance may, of its own accord and shall, whenever moved to do so by the decree holder, inquire and pass a final decree.

(5) A decree may be partly preliminary and partly final and there may be more than one preliminary decree and more than one final decree."

(b) Order 20 Rule 18.- Similarly in a partition suit, at the stage of preliminary decree the quantum of share and the items of property which are partable, are ascertained initially and under Order 20 Rule 18(2) a preliminary decree is passed together with a direction for accounts to be taken.

Order 20 Rule 18 reads as follows:

"Rule18. Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for 27 the partition of property or for the separate possession of a share therein, then,-

(1) .....

(2) If and so far as such decree relates to any other immoveable property or to moveable 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."

The words in Order 20 Rule 18(2): "giving such further directions as may be required" are the source of the power of the Court to direct accounts to be taken.

In some cases, the plaintiff might have been out of possession of the entire joint property or might have been in possession of a small portion thereof or of an item which produced no income. Another party might have been possession of the whole property or an item which yielded income in excess of his share.

Experience shows that when under Order 20 Rule 18(2) a preliminary decree directs accounts to be taken subsequently, the final decree regarding the rents/profits collected by other parties is normally passed several years after the preliminary decree. This again leads to lot of injustice.

When a suit for partition is filed, the parties may seek partition of movable as well as immovable property and also in regard to the income arising from various items of property prior to the suit, pending the suit until the property is divided by metes and bounds and delivered.

The current practice in several courts is to relegate the inquiry into the income to a stage after the passing of the preliminary decree for partition. Where the preliminary decree is passed after several years either by the Court of first instance or by the appellate Court, the inquiry into the income gets indifferently delayed. But if the parties are compelled to adduce evidence in regard to income, in the Court of first instance, for the period prior to the date of filing of the suit and up to the date of commencement of the trial, and if the trial Court is compelled to give findings as the share of the various parties in the said income, irrespective of whether a decree for partition is passed or not, the said evidence and the findings can help an appellate Court to give appropriate findings on the question of income, in the event of the appellate Court granting a preliminary decree for possession.

As stated in the discussion under Order 20 Rule 12, similarly in the case of partition suits also there can be more than one preliminary decree and more than one final decree such as where a preliminary decree for partition is first passed in regard to admitted or non contested items and a separate preliminary decree for partition is passed in regard to contested items. Similarly in the case of inquiry into the income from the joint property, there can be more than one inquiry such as where one inquiry relates to certain properties while other inquiries relate to other properties, or where inquiries deal with income during different periods of time. Further a decree can be partly preliminary and partly final.

So far as the inquiry into the income from the date of commencement of trial up to the date of delivery of the property, that can be relegated to a separate inquiry.

In fact, in some courts in some States, it is the practice to ascertain rents/profits upto the date of the preliminary decree straightaway when the preliminary decree is passed.

It is therefore proposed to substitute the following provision for sub section (2) of Order 20 Rule 18:

"Order 20 Rule 18: (1)..............

(2)(a) If and so far as such decree relates to any movable or immovable property, the parties shall, in addition to adducing evidence in the Court of first instance as to their right to partition, adduce evidence also in regard to the income for the period prior to the institution of the suit (if any claimed), upto the date of commencement of trial and the said Court shall, irrespective of whether a preliminary decree for partition is passed or not, record findings as to the share of income that may be payable to the plaintiff or other parties for the aforesaid period, in the event of a preliminary decree for partition being passed.

(b) 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 for partition of the property by metes and bounds and direct that an inquiry into the income from the property from the date of commencement of the trial shall be made.

(c) Where inquiry is directed under sub-clause (b), parties may adduce evidence in regard to the division of the property by metes and bounds 30 and also in regard to the income from the property for the period from the date of commencement of the trial and the Court shall pass a final decree in regard to the partition of the property by metes and bounds and the allotment thereof and also in regard to the share of the income to which each of the parties is entitled for the period prior to institution of the suit, and for the period during the pendency of the proceedings, upto and until the date of delivery of the property.

(d) Where a preliminary decree for partition is passed by an appellate Court and an inquiry is directed to be made under subclause (b), the said Court may direct the Court of first instance to make the inquiry and in every case, the Court of first instance may of its own accord and shall, whenever moved to do so by any of the parties, inquire and pass a final decree.

(e) A decree may be partly preliminary and partly final and there may be more than one preliminary decree and more than one final decree."



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