SAHEBGOUDA Vs. SONUBAI

JUDGEMENT

(1.) This appeal is by original opponent -1 (defendant-1) and the legaj, representative of original opponent-2 (de- fendant-2) and is directed against the judgment and decree dated 17-8-1978 passed by the Civil Judge, Gulbarga, in R.A. No. 84 of 1975, on his file, allowing the appeal and remanding the case for enquiry of mesne profits.

(2.) Plaintiff had filed a suit as OS No. 121-1 of 1961 on 12-10-61 before the Court of the Subordinate Judge, Gulbarga, and it was subsequently transferred to the Court of the Munsiff, Chittapur, and was numbered as O. S. No. 66-1 of 1964 and the same was decreed on 19-7-67. It was a suit for possession of three lands bearing Sy Nos. 9, 10 and 114 of Gola village and the decree for delivery of possession was passed by the trial Court. Aggrieved by the said judgment and decree, the defendants opponents preferred RA No. 164-4 of 1967 to the Court of the Civil Judge, Gulbarga, in which the defendants got the execution of decree stayed. The plaintiff filed an application for vacating the stay and also for appointment of a receiver. But, the said application was disposed of by taking security for the mesne profits from the defendants. The defendants, subsequently, lost the appeal. They further preferred RSA No. 146-1 of 1970 before this Court and, again, obtained an ex-parte order of stay of the execution of the decree. On the objection made by the plaintiff respondent in the appeal, the stay was confirmed, on appellant furnishing security of Rs. 10,000 by this Court. The defendants lost the sepond appeal also. Thereupon, the plaintiff filed Execution Petition No. 10 of 1973 and obtained possession, the plaintiff filed the present petition on 3-12-73 for mesne profits from the date of the suit till obtaining possession, i.e. from 11-10-61 to 6.9.73. The defendans opponents opposed the petition. They contended that the remedy for recovery of mesne profits was barred by limitation. According to them, the plaintiff had no right to sue for mesne profits for all those years. The quantum claimed was very heavy The petition was not maintainable under S. 144 CPC. Mesne profits were not asked for in the suit and there was no direc- tion for awarding mesne profits in the suit under Order XX Rule 12 CPC.

(3.) On the rival -contentions, the learned Munsiff raised the following issues: