MADURI LAKSHMINARASIMHAM Vs. MADURI SURYANARAYANA AND ORS.

JUDGEMENT

(1.) THE appellant was the first judgment -debtor in O.S. No. 16 of 1932 on the file of the District Court, Vizagapatam, which on transfer was re -numbered as O.S. No. 6 of 1936 on the file of the Court of the Subordinate Judge of Chicacole. The suit was one for partition and consequential reliefs by a member of a joint Hindu family. The final decree which is dated 31st March, 1939, provided inter alia for the payment of Rs. 4,515 by the first defendant personally and by defendants 2 and 3 out of their family properties towards mesne profits from the year 1924 till date of suit (3 1st August, 1932) with interest thereon at the rate of six per cent per annum from date of plaint and also for the payment similarly of three sums of Rs. 530 each towards mesne profits for the years 1932 -33, 1933 -34 and 1934 -35 with interest on the respective amounts at six per cent, per annum from 1st March, 1933, 1st March, 1934, and 1st March, 1935. Costs of the suit were also awarded to the plaintiff in a sum of Rs. 1,019 -15 -0. As the three sums of Rs. 530 together amounting to Rs. 1,590 were profits which arose subsequent to suit and on which therefore no court -fee was paid with the plaint there was a direction that the plaintiff should pay Rs. 157 -7 -0 towards the court -fee payable on that amount. The plaintiff applied for execution of the decree as to past mesne profits and costs in E. P. No. 59 of 1939 which was filed on 1st July, 1939. He made a reservation in the execution petition that as regards mesne profits due to him from the year 1932 up to the end of 1934 he "will take out execution proceedings later on." The execution petition was finally dismissed on 25th August, 1941, with a direction that the attachment should continue for one month. On 23rd September, 1941, the decree -holder again applied for execution in respect of past mesne profits and costs with a similar reservation as to mesne profits subsequent to suit. Certain properties of the judgment -debtors were sold in execution on 27th March, 1944. The judgment -debtors deposited Rs. 9,503 under Order 21, Rule 89 of the Civil Procedure Code and on 6th July, 1944, the sale was set aside, part satisfaction of the decree was entered up, the execution petition was struck off and the attachment was raised. Meanwhile in E. P. No. 92 of 1943, dated 25th March, 1943, the decree -holder applied for delivery of properties allotted to him but this petition was dismissed on 17th February, 1944.

(2.) ON 24th April, 1944, the decree -holder applied in E. P. No. 65 of 1944, out of which the present Letters Patent Appeal has arisen for recovery of Rs. 2,756 -9 -6 being the amount of subsequent mesne profits and interest thereon and the court -fee payable in respect of the former amount, by bringing the Immovable properties of judgment -debtors 1 and 3 to sale. On 24th April, 1944, the decree -holder also applied in E. P. No. 264 of 1944 for extension of time for payment of the court -fee payable in respect of subsequent mesne profits and on the Court granting him the permission asked for he paid the court -fee on that day itself. In E. P. No. 65 of 1944, the principal contention was that it was barred by limitation. Upholding this contention the learned Subordinate Judge of Chicacole dismissed the petition but on appeal to this Court, Chandrasekhara Aiyar, J., held that the petition was in time. The present Letters Patent Appeal is against the latter finding and the only question that has been argued before us is one of limitation.

(3.) THE next step in the argument of the appellant's advocate requires closer consideration. He argues that when a decree grants distinct reliefs arisirg out of different causes of action there are in substance a number of separate decrees though set out on one sheet of paper. With this as the major premises it is contended that an earlier execution petition filed in respect of one of such decrees cannot be relied upon under Clause (5) of Article 182 as providing a fresh starting point of limitation for a later execution petition concerning another of such decrees. If this argument is to prevail the result will be that the decree as to future mesne profits in respect of which limitation began to run on 31st March, 1939, cannot be executed more than three years thereafter and the present execution petition which was filed on 24th April, 1944, will be out of time, E.P. No. 59 of 1939 and E. P. No. 131 of 1941 being according to this argument execution petitions relating to another decree and the final orders passed in those execution petitions being consequently unavailable for the extension of the period of limitation under Clause (5) of Article 182. In support of his proposition that the portioh relating to mesne profits prior to suit and the portion relating to mesne profits after suit arose out of two distinct causes of action the appellant's advocate cited Ponnammal v. Ramamirtha Aiyar, (1914) 28 M.L.J. 127 :, I.L.R. Mad. 829 Doraiswami v. : AIR1918Mad484 and Ramalinga Sethupathi v. : AIR1931Mad717 . In the first of these cases it was held that a claim for possession and a claim for mesne profits which accrued prior to the institution of the suit for possession constitute two separate causes of action and that the later suit is not barred under Order 2, Rule 2 of the Coda of Civil Procedure. In Doraiswami v. : AIR1918Mad484 , it was held by Wallis, C.J. and Kumaraswami Sastriar, J. (Ayling, J., contra) that when in a suit for possession and past mesne profits and future mesne profits the Court gives a decree for mesne profits down to the date of suit and says nothing about subsequent mesne profits, a fresh suit to recover them is not barred under Section 11 of the Code of Civil Procedure, read with explanation V to the said section which provides that any relief claimed in a plaint which is not expressly granted by the decree, shall be deemed to have been refused. The principle on which the decision of the Full Bench was based was that the cause of action in respect of future mesne profis which obviously did not arise by the date of suit was distinct from the causes of action in respect of the claim for possession and the claim for past, mesne profits. In Ramalinga Sethupathi v. : AIR1931Mad717 , it was held that when a decree gives possession of Immovable property and past mesne profits and future mesne profits the decreeholder is entitled to execute the decree with reference to possession irrespective of the question whether court -fee has or has not been paid on the future mesne profits decreed to him by the same decree. I may at once point out that Mr. Ramanarasu, the learned advocate for the respondent does not dispute the proposition that claims for past mesne profits and future xenon profits arise out of two distinct causes of action and is content to rest his case on the argument that the reliefs in respect of past and future mesne profits are nevertheless parts of the same decree and not two different decrees.