Code of Civil Procedure, 1908 (CPC)
Decree in a Suit for Possession under Order XX Rule 12 CPC
A suit for the possession of immovable property is the commonest form of civil litigation over land, and it almost always carries a second claim: the profits the owner lost while he was out of possession. Order XX Rule 12 of the Code of Civil Procedure, 1908 provides for both in one decree, and in doing so produces the Code's clearest example of a decree that is partly final and partly preliminary. These notes cover the form of the decree, the inquiry into mesne profits, the identification of the property, and the execution of a decree for possession.
1. Order XX Rule 12: The Provision
§ Order XX Rule 12, CPC 1908 (in substance) (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree — (a) for the possession of the property; (b) for the rent or 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 rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder, or until 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. |
The three heads of relief
i. Possession. The decree for possession is complete in itself and is executable at once under Order XXI; nothing further remains to be done about it.
ii. Past mesne profits. Profits that accrued before the suit was instituted must be claimed in the plaint and are ordinarily proved at the trial; the court may decree a sum or direct an inquiry.
iii. Future mesne profits. Profits from the institution of the suit until delivery of possession, or until three years from the decree, whichever is earlier, are the subject of an inquiry directed by the decree, and a final decree follows the inquiry under sub-rule (2).
Order XX Rule 12 among the special decrees that begin with a preliminary decree
2. Why the Decree is Partly Final and Partly Preliminary
§ The classic illustration of Section 2(2) By the Explanation to Section 2(2), a decree is preliminary where further proceedings have to be taken before the suit can be completely disposed of, final where the adjudication completely disposes of the suit, and may be partly preliminary and partly final. A decree under Rule 12 is exactly that: final as to possession, because nothing further is required before it can be executed, and preliminary as to mesne profits, because an inquiry must be held before the amount can be determined and a final decree passed. The practical consequences follow at once. The plaintiff may execute the possession part immediately without waiting for the inquiry; the mesne profits part becomes executable only when the final decree under sub-rule (2) is passed; and time for appeal runs separately against each part as it is passed. |
3. The Inquiry into Mesne Profits
i. Who conducts it. The court may hold the inquiry itself, or may issue a commission under Section 75 and Order XXVI Rule 9 to examine accounts or make a local investigation, which is the common course where the profits must be worked out from crops, rents or accounts.
ii. What is determined. The measure is that in Section 2(12): the profits the person in wrongful possession actually received or might with ordinary diligence have received, together with interest on those profits, but excluding profits due to improvements made by him.
iii. The three-year limit. Clause (c) confines the inquiry into future profits to the period ending on delivery of possession or three years from the decree, whichever is earlier. Where possession is not delivered within three years, the decree-holder's remedy for the later period is a fresh suit, since the decree cannot cover it.
iv. The final decree. Sub-rule (2) requires a final decree in accordance with the result of the inquiry. Until it is passed, the mesne profits portion is not executable.
4. Identification of the Property and the Decree's Terms
A decree for possession must describe the property with enough precision to be executed. The requirement begins in the pleading: Order VII Rule 3 requires a plaint relating to immovable property to contain a description sufficient to identify it, and, where the property can be identified by boundaries or numbers in a record of settlement or survey, to specify those boundaries or numbers. The decree carries that description forward, since Order XX Rule 6(1) requires it to specify clearly the relief granted. A decree that describes the property vaguely is liable to fail at the execution stage, where the bailiff must be able to identify on the ground what he is to deliver.
§ Related provisions on possession decrees Order XX Rule 9: where the suit is for the recovery of movable property, and the decree is for the delivery of such property, it shall also state the amount of money to be paid as an alternative if delivery cannot be had. Order XX Rule 10: where the suit is for the performance of a contract for the delivery of movable property, the decree shall state the amount of money to be paid in the alternative if delivery is not made. Order XX Rule 11: where the decree is for the payment of money, the court may order that payment be postponed or made by instalments, with or without interest, on the defendant's application and, after the decree, with the decree-holder's consent. |
5. Execution of a Decree for Possession
Situation | Provision | How possession is delivered |
|---|---|---|
Property in the possession of the judgment-debtor or a person bound by the decree | Order XXI Rule 35 | The court delivers possession, removing any person bound by the decree who refuses to vacate, using force if necessary |
Property in the occupancy of a tenant or other person entitled to occupy it | Order XXI Rule 36 | Possession is delivered symbolically, by affixing a copy of the warrant and proclaiming that the interest of the judgment-debtor has been transferred to the decree-holder |
Resistance or obstruction by any person | Order XXI Rule 97 | The decree-holder may apply, and the court adjudicates the application under Rule 98, the determination having the force of a decree |
Dispossession of a person not bound by the decree | Order XXI Rules 99 and 100 | The person dispossessed may apply, and the court adjudicates his claim; if he is not bound by the decree, possession is restored |
Property held by a third party in his own right | Order XXI Rule 101 and 102 | All questions relating to right, title or interest are determined by the executing court; Rule 102 denies relief to a transferee pendente lite |
6. Landmark Points
- Order XX Rule 12(1). A decree in a possession suit may cover possession, past mesne profits or an inquiry into them, and an inquiry into future profits until delivery of possession or three years from the decree, whichever is earlier.
- Order XX Rule 12(2). A final decree follows the inquiry, and the mesne profits portion becomes executable only when that final decree is passed.
- Section 2(2), Explanation. A decree under Rule 12 is the classic instance of a decree that is partly final and partly preliminary.
- Order VII Rule 3 with Order XX Rule 6(1). The property must be described with sufficient precision in the plaint and in the decree for the decree to be executable.
- Order XXI Rules 35, 36 and 97 to 102. The machinery for delivering possession and for resolving resistance, obstruction and third-party claims.
7. Frequently Asked Questions
What can a decree in a suit for possession contain under Order XX Rule 12?
Possession of the property; rent or mesne profits that accrued before the institution of the suit, or a direction for an inquiry into them; and a direction for an inquiry into rent or mesne profits from the institution of the suit until delivery of possession or the expiry of three years from the decree, whichever is earlier.
Why is a decree under Order XX Rule 12 partly final and partly preliminary?
It is final as to possession, because nothing further is needed before that part can be executed, and preliminary as to mesne profits, because an inquiry must be held and a final decree passed under sub-rule (2) before the amount is known and executable.
Can the possession part be executed before the inquiry into mesne profits is complete?
Yes. The possession part is final and executable at once under Order XXI; the mesne profits part becomes executable only when the final decree following the inquiry is passed.
For how long can future mesne profits be decreed?
Until delivery of possession to the decree-holder, or until the expiration of three years from the date of the decree, whichever event first occurs. For any later period the decree-holder must file a fresh suit, since the decree cannot extend beyond that limit.
How is a decree for possession executed?
Under Order XXI Rule 35 the court delivers possession, removing any person bound by the decree who refuses to vacate. Where the property is in the occupancy of a tenant or other person entitled to occupy it, Rule 36 provides for symbolic delivery by affixing a copy of the warrant and proclamation.
What if a third party resists execution of a possession decree?
Order XXI Rule 97 allows the decree-holder to apply on resistance or obstruction, and the court adjudicates under Rule 98. A person not bound by the decree who is dispossessed may apply under Rules 99 and 100, and by Rule 101 all questions of right, title and interest are determined by the executing court itself.
8. Related Topics in This CPC Series
- Decree for Mesne Profits under the CPC
- Section 33 and Order XX: Judgment and Decree
- Important Definitions under Section 2 CPC
- Order VII: The Plaint, Return and Rejection