1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FAST/8959/2011 PUNDLIK MADHAV PATIL, DIED. THR. L.RS. REVABAI PUNDLIK PATIL AND ORS VERSUS DILIP MULCHAND PATIL AND ORS ... Advocate(s) for Petitioner: Yawalkar Siddharha B. ... CORAM : R.M. BORDE, J. Dated: June 27, 2011 ... PER COURT :- 1. This is an appeal raising exception to the order passed in Misc. Civil Application No.1/1997 passed by the 4 th Joint Civil Judge Senior Division, Jalgaon on 27.10.2010, directing the appellants to pay mesne profit amount of Rs.2,40,000/- along with interest @ 10% per annum from the date of presentation of the application till realization of the amount. Since directions in respect of the mesne profit is for amount of Rs.2,40,000/-, First Appeal is presented by the 2 defendant to this Court. It is to be noted that an inquiry into mesne profit is conducted in accordance with the provisions of Order XX Rule 12 which reads thus :- “12. Decree for possession and mesne profits – (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 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 the 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 until - (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 (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 (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 3 2. The Court passing a decree in respect of delivery of possession, further issued directions in respect of holding an inquiry into mesne profit and as such, in an inquiry as contemplated by the Code of Civil Procedure, the amount is receivable by the plaintiff towards mesne profit is determined. The valuation of the suit for purpose of jurisdiction is the same for determination of the forum of appeal and it remains unchanged for determination of forum of appeal even in respect of an inquiry as contemplated by order 20 Rule 12 of Code of Civil Procedure. Shri Yavalkar counsel appearing for the appellant has invited my attention to Section 107 (2) which provides that“ The appellate court shall have same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” Order 7 Rule 10 provides for return of plaint. 3. The appellate court is also invested with all the powers as conferred on the Court of original jurisdiction. The appeal is continuation of the suit and as such Appellate Court can very well direct return of the appeal for its presentation to proper forum. Since 4 it is revealed that valuation for purpose of jurisdiction shall have to be taken to Rs.40,830/- which was valuation for jurisdiction for presenting RCS No.25/1982, the forum for presenting the appeal in respect of an inquiry into mesne profit arising out of the said suit shall be the District Court. The appeal presented to this Court is not competent and for the reasons recorded above, it needs to be returned back for its proper presentation considering request made by the appellant before this Court. 4. On consideration of the request made by the counsel for appellant, it is hereby directed to return the papers of APPEAL for its proper presentation to the appellant. The appellant is directed to present the appeal to the proper forum within a period of THIRTY DAYS from the date of its return. Instant appeal however stand disposed of. Pending civil application, if any, does not survive and stands disposed of. [ R.M.BORDE, J. ] aaa/8959.11 ****