Definition of Mesne Profits,Movable Property, Order Pleader and Prescribed Under CPC 1908

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                                                      Lecture No.8 On CPC 1908.

                                                            Mesne Profits : [ Section 2(12)]

        As per definition " Mesne Profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together on such profits, but shall not includes profits due to improvement made by the person in wrongful possession.

                                                              Comments

Objects:

Every person has a right to possess his property and when he is deprived of such right by another person, then he is entitled not only to restoration of possession of his property but also damages for wrongful possession from that person. The mesne profits are thus a compensation paid to the real owner.

The object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he was entitled to possession thereof.

What Constitutes mesne profits :  To constitutes the right of mesne profits, certain essential ingredients must be satisfied. These are:-

a. There must be wrongful possession of the property. [ immovable property]

b. The profits must be made or might reasonably be expected to have been made;

c. The profits must arise or might arise to the person who was in the wrongful possession of the property; and

d. The person claiming mesne profits must be legally entitled to the possession of the property and must have been kept out of possession by the person who was in the wrongful possession of the property.

a. There must be wrongful possession of the property. [ immovable property] :  The " Wrongful possession" is the essence of mesne profits. Where possession is not wrongful, then there the question of mesne profits does not arise.

b. The profits must be made or might reasonably be expected to have been made : Profits means the difference between the amount realized and the expenses incurred on realizing it.

The criterion for calculation is not what the owner loses by reason of deprivation from possession but what the trespassers received or might have received with ordinary diligence.

If the person in wrongful possession had merely let out the land, then the rental value of the land is the proper basis of calculating profits unless it can be shown that a higher rent could have been obtained with ordinary diligence. but when the wrongdoers cultivated the land themselves, then the profits arising out of such cultivation become the primary consideration.

It is the claimant who has to prove what profits might with diligence have been received.

C. The profits must arise or might arise to the person who was in the wrongful possession of the property.

d. The person claiming mesne profits must be legally entitled to the possession of the property and must have been kept out of possession by the person who was in the wrongful possession of the property : In order to claim mesne profits, the claimant must establish in the court that he was actually entitled to the possession of the immovable property and that he was wrongfully kept out of possession.

Interest on Mesne Profits:- Since interest is an integral part of mesne profits,so it has to be allowed in the computation of mesne profits itself. The rate of interest is at the discretion of the court, subject to the limitation that the said rate shall not exceed 6 % p.a.. Such interest can be allowed till the date payment.

                                                            Lecture No. 9

Movable Property [Section 2(13)]

" Movable Property" includes growing crops.                                                                                  

Comments

This definition of movable property is confined to the Civil Procedure Code. 1908 only.             

Order:- [ Section 2(14)]

 " Order" means the formal expression of any decision of a Civil Court which is not a decree.                                

Comments

1. An Order rejecting memo of a time- barred appeal under section 5 of the Limitation Act for condonation of delay is neither a decree nor an appealable as a decree. But it is an appealable Order.

2. Order directing a party to pay expenses of commission is considered to be an order.                 

Pleader: [Section 2(15)]:- 

" Pleader" means any person entitled to appear and plead for another in Court and includes an     advocate, a Vakil and an attorney of a High Court.                                                                   

Comments      

Advocate has been defined in Section 2 of the Advocate Act 1961 as " One whose name is entered in any roll under the provisions of this Act." A person whose name has been removed from the rolls is not an advocate. He would not be a pleader, as he is not entitled to be a pleader. [ Jethanand Vs. Judges of Punjab High Court AIR 1962 SC 742].                                                                                   

Prescribed: [ Section 2(16)]

"Prescriber" means prescribed by rules.                                                                                               

Comments

Thus form the definition it is very clear that' prescribed denotes what is prescribed by rules. The expression ' rules" refers to the rule made under the code of civil procedure, 1908. The rules are given in CPC in the Ist Schedules which are classified in 51 Orders. Each Order deals with a specific procedural matter and contain rules thereof.                                                                                             

The rules made by High Courts in exercise of the powers conferred upon them by Sections 122 and 125 also fall within the definition of " rules."