ARUNACHALA MUDALI Vs. MARAGATHAMMAL

JUDGEMENT

(1.) This is an appeal against an order of remand passed by the learned Subordinate Judge of Vellore. The facts necessary to understand the points raised for consideration in this Court are these: The plaintiffs who are the respondents in this appeal brought a "suit O. S. No. 253 of 1938 in the District Munsif's Court of Tirupattur which was transferred finally to the District Munsif's Court of Vellore and numbered there as p. S. No. 241 of 1945 for the recovery of possession of three items of immoveable properly set out in Seh. B to the plaint. The suit was filed on 28-3-1938. The plaint as filed prayed for the relief of possession of the suit property but contained no prayer for past or future mesne profits. The trial Court granted a decree for the relief of possession and this was affirmed in appeal filed by the defendants to the Subordinate Judge of Vellore and finally to this Court in second appeal. The second appeal to this Court was dismissed on 14-2-1950. While the second appeal was pending here the plaintiffs filed in the trial Court (District Munsifs Court, Vellore) I. A. No. 840 of 1949 purporting to be under Order 20 Rule 12, C. P. C., and praying for a direction to hold an enquiry to ascertain the mesne profits subsequent to the plaint and pass a decree after ascertaining the quantum of profits payable to them. This application was opposed say the defendants on the ground that as there had been no prayer in the plaint as originally filed praying for directions for ascertainment of mesne profits and the decree contained no such relief, the plaintiffs were disentitled by 'res judicata' and also by the terms of Order 20 Rule 12, C. P. C., from making the said application. It might be mentioned that in pursuance of the decree directing delivery of possession to the plaintiffs of the properties the recovery of which was sought, the plaintiffs obtained possession on 1-8-1948.

(2.) The learned District Munsif held that as the plaintiffs had not originally in their plaint prayed for this relief namely a direction in the decree for the ascertainment of mesne profits subsequent to the plaint, and as the decree did not afford them any such relief, Order 20 Rule 12, C. P. C., was inapplicable to the case and dismissed the plaintiffs' application. The learned District Munsif in reaching this conclusion held that the decision of this Court reported in -- 'Atchayya v. Appalaraju', AIR 1947 Mad 109 (A), bound him and was a clear authority for the position that the petition was not maintainable.

(3.) From this order of the learned District Munsif, the plaintiffs preferred an appeal to the Subordinate Judge of Vellore and that Court reversed the decision of the trial Court and held that certain observations in a decision of a Full Bench of this Court reported in -- 'Basavayya v. Guravayya', should be treated as having overruled 'AIR 1947 Mad 109 (A)', on which the learned District Munsif had based his order. Holding that the application was maintainable the learned Subordinate Judge remanded the application to the trial Court for disposal according to law. It is this order of remand that is challenged before me as incorrect and not in accordance with law by the learned counsel for the defendants-appellants.