PATHINI PILLAI Vs. CHENTHIPERUMAL PILLAI

JUDGEMENT

(1.) THIS is an application for the amendment of a decree. In O. S. No. 98 of 1116 on the file of the Nagercoil District Court the present petitioner sought to obtain a declaration as to her title to the suit properties therein and recover them with mesne profits from the possession of her deceased sister's husband who was the sole defendant to the suit. The parties are Nanjanad Vellalas. The suit was contested and the trial court ultimately passed a preliminary decree entitling the petitioner herein to recover a half-share of the properties with mesne profits thereof from the date of the death of her sister Ponnamma. She died on 6. 4. 1115. The suit was instituted on 27. 12. 1116. The preliminary decree was passed on 29. 4. 1122. The petitioner was dissatisfied with the decree refusing her relief with respect to the remaining half-share. She therefore preferred an appeal to the High Court in A. S. No. 434 of 1122. The appeal was found to be groundless and it was dismissed with costs. Pending the suit a receiver was appointed to take possession of the properties and to manage them. THIS was in 1119. The trial court fixed the rate of annual mesne profits on the basis of the average yield the receiver realised from the properties till the date of the passing of the preliminary decree. Though the decretal portion of the judgment did not specify the period during which the rate of mesne profits so fixed should have operation, in an earlier paragraph the Court had clearly stated that the plaintiff was entitled to mesne profits from the date Ponnamma died till the date the receiver took charge. The decree was drawn up ignoring the time-limit. It states that the plaintiff is entitled to mesne profits at the rate fixed by the Court till she recovers possession of her half-share in the properties. Her complaint is that the decree is not in conformity with the judgment when it proceeds to state that she can realise mesne profits at the rate fixed not only until the receiver took charge but till she recovers possession. According to her from the date the receiver took possession of the properties the net profits realised by the receiver is to be shared in equal halves by her and the defendant.

(2.) THE defendant who is the counter-petitioner to this petition opposed the petition, but he has himself complained that the decree is not in conformity with the judgement in certain other respects. Before we proceed to examine how far and to what extent the decree is in variance with the judgment, we shall first dispose of a preliminary objection raised on behalf of the counter-petitioner to the effect that the proper Court to amend the decree is the lower court and not the High Court. THE argument is that the amendment sought for by the petitioner is with respect to that portion of the claim which was decreed by the trial court for which there was no appeal and hence it is not for the High Court to direct the amendment to be made. We are afraid we cannot accept the argument. THE decision in Keramatulla Meah v. Keamatulla Meah 57 Indian Cases 710 relied on by the counter-petitioner's learned advocate does not contain any reasoning or reference to any authorities. If we may say so with respect, the judgement contains only a bald statement that the amendment sought for related to a matter which was outside the scope of the appeal preferred to the High Court and that the learned judges were therefore disposed to accept the contention of the opposite party that the trial court was the proper forum to make the amendment. THE case, no doubt, related to a suit for recovery of a certain share in immovable properties and the appeal was with respect to the portion of the plaintiff's claim the trial court refused to recognise. THE statement of the facts of the case does not however show that any claim for mesne profits was involved in that suit either in the trial court or in appeal. Here the appeal related not only to the other half-share in the properties but also to mesne profits in respect thereof.

(3.) THE amendment, as stated earlier, sought for by the petitioner is that the decree should be made to express the Court's intention that the datum line for the rate of mesne profits fixed by the Court to operate is the date when receiver took charge of the properties. We have said that though the decretal portion of the judgment is not clear the learned judge had in an earlier paragraph (Para. 11) stated that he was fixing the profits only for the period ending with the receiver's assumption of charge. THE position is perfectly understandable and also sound. This amendment has therefore to be allowed and we decide accordingly. Though the petition mentions that the decree is in variance with the judgement also in other respects, the petitioner's learned Advocate did not press for any other amendment.