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Revision No. 3 of 1960‑61, decided on 23rd February 1962, District Peshawar.

‑Suit for mesne profits‑Land obtained through decree in pre‑emption suit‑Pre‑emptor does not become entitled to mesne profits, unless there is "final" decree and payment is made "under" that decree‑Civil Procedure Code (V of 1908), O. XX, r. 14.

The brief facts of this revision petition are as follows: ‑‑

The respondent obtained a pre‑emption decree in respect of five fields situated in village , Khushmaqam District Peshawar against the petitioner on payment of Rs. 13,422‑14‑0. In appeal before the former Judicial Commissioner Peshawar the suit in respect of three of the five fields was dismissed ; the decree was upheld in respect of the remaining two fields but the suit was remanded to the trial Court; for a determination of the market value of these two fields. This price was determined as Rs. 8664‑8‑0. The respondents who had deposited this amount before the institution of the suit under the provisions of section 22 of the Pre‑emption Act, then sued in the revenue Courts for mesne profits for the period Kharif 1954 to Rabi 1959. This suit was decreed and the decree has been upheld in appeal by the Collector and in revision by the learned Additional Commissioner. A second revision has now been filed.

The main argument that has been taken up before me is that the pre‑emptor becomes entitled to mesne profits when he pays the amount of the purchase price finally decreed and not on account of any deposit having been made by him under the other provisions of the Pre‑emption Act. It is contended on the other hand that the decretal amount had already been deposited in Court in respect of the two fields the pre‑emption of which had been upheld by the learned Judicial Commissioner. It should, therefore, be considered that the amount due under the decree had already been paid but as observed by me the entitlement to mesne profits will vest in the pre‑emptor from the date when he pays the amount of the purchase price finally decreed. The amended law under Order XX, rule 14C. P. C. is that unless there is a final decree and payment is made under that decree the pre‑emptor does not become entitled to mesne profits. In my opinion the learned Additional Commissioner has misinterpreted the ruling given by my learned predecessor Mr. M. Z. Khan in Waheed Khan etc. v. Mutabar etc., Revision No. 23 of 58‑59. 1 would accordingly set aside the order passed by him and order that mesne profits should be recalculated as decided above. With this direction I would remand the proceedings to the original Court for a fresh decision on this point.

K. M. A.

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