CHITTOORI SUBBANNA Vs. KUDAPPA SUBBANNA

JUDGEMENT

(1.) THE following Judgments of the court wen' delivered by

(2.) THIS appeal, presented on a certificate granted by the High court of Andhra Pradesh, arises out of execution proceedings in execution of a decree dated 7/03/1938. Kudapa Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the properties mentioned in Schedules A and C and to 1/24ths share in the properties mentioned in Schedule B attached to the plaint. The defendants in possession of the properties were directed to deliver possession to the decree-holder. The properties in Schedule B were first to be divided in accordance with the shares specified in para 9 of the plaint and the decreeholder was to be allowed the share to which the first plaintiff was shown to be entitled. The trial court was directed to make an enquiry into the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that be found due up to the date of delivery of possession to the second plaintiff. Possession over the properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On 23/06/1945, the decree-holder filed I.A 558 of 1949 to revive and continue the earlier I.A. 429 of 1940 which had been presented for the ascertainment of future profits and was struck off on 25/09/1944. On 28/07/1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was Rs. 17,883-8-3 including Rs. 10,790.00 for mesne profits. He also decreed mesne profits with respect to the B-schedule properties upto 1946. They are not in dispute now.

(3.) CHITTURI Subbanna, appellant, applied to the High court for permission to raise an additional ground of appeal to the effect that the trial court was not entitled to grant mesne profits for more than 3 years from the date of the decree of the High court. The High court disallowed that prayer for the reasons that he had not taken such a ground in the memorandum of appeal and had, on the other hand, conceded before the Commissioner and the trial court that accounts could be taken upto 1943 in respect of A and C schedule properties, that he had elected to have the profits determined by the trial court upto the date of delivery of possession and that if he had taken the objection earlier, it would have been open to the second plaintiff-respondent to file a suit for the recovery of mesne profits beyond the three years upto the date of deliG very of possession. It is urged before us for the appellant that the High court was in error in not allowing the appellant to have raised the objection based on the provisions of O .20, r. 12, C.P.C. We agree with this contention. The question sought to be raised was a pure question of law and was not dependent on the determination of any question of fact. The first appellate court ought to have allowed it. Such pure questions of law are allowed for the first time at later stages too.