THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 2417 of 2009 DATE: 30-04-2011 Between: Smt.Rampalli Seshamma .. Petitioner And Sri N.Narsimha Rao .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 2417 of 2009 ORDER: This Civil Revision Petition is filed against the order dated 02.02.2009 in E.A.No.1979 of 2007 in E.P.No.355 of 2006 in O.S.No.426 of 2000 on the file of the I Additional Junior Civil Judge at Eluru. The suit was originally filed for recovery of possession of the property after evicting the defendant from the suit schedule property and after contest the decree was passed as follows: i. That the defendant is and hereby directed to vacate the plaint schedule premises within three months from the date of decree i.e. 2-9-2002 and put the plaintiff in the vacant possession of the same; and ii. That the defendant be and hereby directed to pay the damages to the plaintiff from 1-6-2000 to the date of delivery of vacant possession; and iii. That the defendant do pay to the plaintiff a sum of Rs.3,908-00 towards the costs of the suit, bearing his own costs of Rs.2,122-00. Thereafter against this decree, a First Appeal was carried in A.S.No.139 of 2002 on the file of the I Additional District Judge, Eluru which was dismissed on 24.11.2003 and thereafter a Second Appeal was preferred and it was dismissed as withdrawn by this Court by the order dated 30.04.2007. Thereafter the present Execution Petition was filed by the decree-holder for recovery of the damages @ Rs.9,000/- per month from 01.06.2000 till 16.06.2006. The judgment-debtor has filed the present E.A.No.1979 of 2007 under Section 47 of the Civil Procedure Code, 1908 (for short “CPC”) contending that the Execution Petition is not maintainable since there was no determination of the damages @ Rs.9,000/- per month and consequently the Executing Court cannot grant the relief as claimed. The learned I Additional Junior Civil Judge at Eluru accepted the contention and found that the Executing Court cannot travel beyond the decree and dismissed the Execution Petition. Aggrieved by the said order, the present revision is filed. The point that arises for consideration is whether the order of the learned I Additional Junior Civil Judge at Eluru is legal and sustainable? POINT: Evidently, the decree as extracted above specifically provides that the defendant shall pay damages from 01.06.2000 to the date of delivery of vacant possession. Therefore, when the damages are claimed, it is not without any right under the decree and the plaintiff is not going beyond the scope of the decree. Evidently, under Order XX Rule 12 of CPC, when the Court directs the payment of the rent or mesne profits in future, the Court itself may fix it or may direct an enquiry to be conducted. Therefore, when the decree holder has filed this present application, the Court can also treat it as an application for determination of the mesne profits @ Rs.9,000/- per month and after determination of the same it can pass the necessary decree for execution about the amount the decree-holder is entitled. Even otherwise, the tenant cannot be allowed to continue in possession of the property without payment of the admitted rent by the date of the suit. When the Execution Petition is filed by the decree-holder, he is only enforcing the right given under the decree, which is recognized under Order XX Rule 12 of CPC. If the judgment-debtor is to dispute the quantum of the amount claimed by the petitioner, an enquiry can be held and the lower Court shall determine the appropriate amount of the damages or rent, the decree-holder is entitled to. The question of invoking Section 47 of CPC and holding that the decree is not executable, does not arise at all. The execution is to be treated as a continuation of the suit since a decree for eviction is considered only as a preliminary decree, whereunder the determination of the mesne profits can be considered as culminating in a final decree. Therefore, the order of the lower Court in dismissing the Execution Petition holding that it is beyond the scope of the decree is not legal. The reliance of the order of the appellate Court in I.A.No.862 of 2002 has no bar to the right of the decree-holder to seek for the recovery of the profits after determination of the damages. When evidently the Court has not fixed the damages, it is explicit that shall be determined by a separate enquiry to be conducted by the Court itself or by conducting an enquiry otherwise. The lower Court shall treat the Execution Petition as an application for determination of the mesne profits and shall decide as to what is the amount the decree-holder is entitled to and then pass the necessary reliefs. Both the parties shall be given an opportunity to adduce the evidence. Therefore, the order of the lower Court is set aside and the revision is allowed and the lower Court is directed to restore the Execution Petition to file and proceed further in the Execution Petition as per the directions given above and also directed to dispose of the Execution Petition within six months from the date of receipt of copy of this order. No costs. ________________________ N.R.L.NAGESWARA RAO, J 30-04-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 2417 of 2009 DATE: 30-04-2011 MR