M JANAKIRAMA IYER Vs. MEENAKSHIAMMAL

JUDGEMENT

(1.) THIS civil revision petition is filed against the order passed in I.A. No. 877 of 1980 in I.A. No. 234 of 1980 in O.S. No, 21 of 1963 on the file of the Court of the learned Subordinate Judge, Mayuram, The application was filed by the plaintiff under Order 7, rule 11 and section 151, Civil Procedure Code, to enquire as to whether I.A. .No. 234 of 1980 filed under Order 20, rule 12, Civil Procedure Code, is barred by time. The lower Court has dealt with the matter by rasing a point whether the claim of mesne profits is barred by time and came to the conclusion that Article 137 of the Limitation Act, would apply to a case of this type, since the plaintiff had taken possession of all the properties covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it accrues and that the application was barred by time. Aggrieved by the above decision of the lower Court the second plaintiff has come forward with this civil revision petition, inter alia contending that the lower Court had erred in holding that the petition filed by the respondent herein to appoint a Commissioner to ascertain the mesne profits is barred by time. It is further contended by the learned counsel for the revision petitioner that in view of the fact that in the preliminary decree relegating the ascertainment of the mesne profits by means, of a separate application, the learned Subordinate Judge ought to have held that the present application is not an independent one but only a continuation of the suit Mr. R. Srinivasan, learned counsel for the revision petitioner, submitted that the lower Court failed to see that when no final decree has been passed the question of limitation would not arise at all. It is further submitted on behalf of the revision petitioner by Mr. R. Srinivasan, learned counsel for the revision petitioner, that the learned Subordinate Judge fell into error in taking the date on which the plaintiff took delivery of possession of the property viz., 30th March, 1975, as the date on which the right to apply for the mesne profits accrued. It is also pointed out on behalf of the revision petitioner that the Court below erred in applying Article 137 of the Limitation Act, and holding that the petition was clearly barred by time. The view of the lower Court that the limitation starts on the next day as and when the property is taken possession is, according to the revision petitioner, clearly erroneous. It is further pointed out by the learned counsel for the revision petitioner Mr. R. Srinivasan on behalf of the revision petitioner that the decision reported in Ramasubramanya Pattar v. Karimbil Pad and others1 and in Jainalabuddin v. K.S.A. Abdul Kadar and others2, are clearly to the effect that the claim .of the petitioner is not barred by time. In other words it is submitted that the lower Court committed an error in thinking that the petition ought to have been filed within three years from the date when the plaintiff took possession of the properties. It is also submitted that the order under revision becomes reusable by virtue of section 115, Civil Procedure Code, since the lower Court ought to have that the petition was not barred by time.

(2.) ON the other hand Mr. R. Balachander, learned counsel for the, respondent, contends that the lower Court had exercised its power properly and there is no excess jurisdiction nor is there any error committed by it inasmuch as it has followed the principle embedded in the decisions reported in Dashnamurthi Pillai v. Vedamurthy Mudaliar1 and in K.R. Muthu Alagappa Chettiar v. Ahmed Ibrahim Alim Saheb2.

(3.) MR. R. Srinivasan, learned counsel for the revision petitioner, refers to the decision reported in Jainalabuddin v. K.S.A. Abdul Kader and others5, where the following observation has been made by Balasubrahmanyan, J: "