RAMASWAMI IYER Vs. A SUBBIAR

JUDGEMENT

(1.) THIS revision petition is against the order of the learned District Munsiff of Tirunelveli in I. A. No. 445 of 1953 in O. S. No. 458 of 1941.

(2.) THE suit itself was one for partition filed In 1941, but the issues were framed on the 6th April 1942. The suit being for partition among two brothers, the relevant order of the Civil Procedure Code and the rule applicable to the case would be order XX Rule 18 and not Rule 12. Much time need not be spent on this question as to which exactly is the rule that applies to suits for partition. Some four years after the issues were framed, there was a compromise entered into between the parties and, in pursuance of the compromise, a preliminary decree was passed on the 19th March 1946. Though in the suit there were issues raised relating to the taking of accounts and the liability of the defendants to the plaintiff in respect of such accounts, still, in the preliminary decree that was passed on the 19th March 1946, there was absolutely no mention, not even whisper, about accounting between the parties, or about any claim for mesne profits arising out of such accounts being taken between the parties.

(3.) ON the other hand, as per the preliminary decree passed in pursuance of the compromise, paragraphs 3, 4 and 5 reserve several rights of the parties to be settled at a later stage, viz, at the stage of the final decree. But no such reservation has taken place in respect of the accountability between the parties as to mesne profits or otherwise. Therefore, construing the terms of the compromise decree, it would not be unreasonable to hold that the parties while deliberately reserving their rights in other respects to be settled and adjusted at the time of the final decree, deliberately left out of consideration the rights of parties to regard to the mesne profits or accounts.