The Bombay High Court, Nagpur Bench, has held that a separate proceeding for future mesne profits is maintainable even if the original decree for possession is silent on that aspect. The Court has reiterated that such a claim is not barred by constructive res judicata under Section 11 Explanation V of the Code of Civil Procedure, 1908 (CPC).
The appellants had earlier succeeded in obtaining a decree for possession of their immovable property from the Maharashtra State Warehousing Corporation. However, the trial court’s decree did not specifically direct an inquiry into future mesne profits, despite the plaintiffs having claimed it.
Subsequently, they instituted a fresh proceeding to determine future mesne profits accruing from the date of possession until actual delivery. The respondent corporation opposed the proceeding, arguing that since the original decree was silent on the issue, any fresh claim stood barred by the doctrine of constructive res judicata under Explanation V to Section 11 CPC.
Both the trial court and the appellate court upheld this objection. Aggrieved, the plaintiffs approached the High Court in second appeal.
Justice Rohit W. Joshi undertook a detailed analysis of the statutory scheme under Order XX Rule 12 CPC, which empowers courts to pass decrees for possession along with past and future mesne profits. The Bench referred to the Full Bench decision in Gangadhar Gopalrao Deshpande v. Shripad Annarao Deshpande (AIR 1938 Bom 231), holding that a separate proceeding for mesne profits is maintainable even if a decree for possession is silent on this subject, provided the right to claim such profits accrued subsequent to the decree.
Rejecting the respondent’s plea, the Bench clarified that Explanation V to Section 11 CPC applies only where the relief could have been granted at the time of the decree. Since future mesne profits accrue after the decree, they cannot be deemed to have been refused.
The Court quashed the District Judge’s order dismissing the plaintiffs’ mesne profit case and remanded the matter for adjudication on merits.
Appearances
Mr. C. S. Kaptan, Sr. Advocate a/b. Mr. H. N. Verma, Advocate for the appellants.
Mr. N. R. Saboo, Advocate for the Respondent.
