M RAJANGAM AYYAR Vs. NATESA CHETTIAR

JUDGEMENT

(1.) THIS second appeal is against the judgment on appeal of the learned District judge of Kumbakonam in A. S. 69 of 1962 against the order of the District Munsif, valangiman at Kumbakonam in I. A. 1171 of 1961 in O. S. No. 35 of 1953. The plaintiff in O. S. 35 of 1953 is the appellant. O. S. 35 of 1953 was a suit for partition and possession of the plaintiff's share of the suit properties. Along with the prayer for partition and possession of his share, the plaintiff also prayed for mesne profits. The preliminary decree provided not merely for partition and possession of the plaintiff's share but also for the ascertainment of mesne profits and it being provided for in the final decree. It appears that while the petition for passing the final decree was pending, the appellant filed an application for ascertainment of mesne profits. The application was returned a number of times by the court raising the question as to how a petition for ascertainment of mesne profits could be filed before the final decree for allotting the plaintiff's share had been passed. Though this does not appear either in the judgment of the trial court or in the judgment of the appellate court, I have been shown a certified copy of the order in the earlier application filed by the appellant. But, unfortunately the appellant did not re-present the earlier petition but filed a petition out of which the present appeal arises for ascertainment of mesne profits. The trial court held that the mesne profits could be ascertained. The appellate court took the view that the mesne profits not having been ascertained and provided for in the final decree, it is not possible to do so in this application. The lower appellate court relied upon two decisions one reported in Basavayya v. Guravayya, and another in Arunachala Mudali v. Maragathammal It appears to me that neither of these decisions what the Full Bench decided was that in a suit for partition even though there is no prayer in the plaint as regards the claim for mesne profits it is still open to the court to hold an enquiry regarding mesne profits during the pendency of the suit, that is before a final decree is passed. That was a case like the present one which falls under Order 20 Rule 18. We are not concerned however in the present case with the question of the plaintiff not having prayed for mesne profits in the plaint but coming later with an application for ascertainment of mesne profits. We are concerned with a case where the preliminary decree itself has provided for ascertainment of mesne profits. The decision in was in a case which fell under O. 20 Rule 12 C. P. C. and what this court decided there was that in such a case where there was no prayer in the plaint for mesne profits it was not open to the plaintiff subsequently to ask for ascertainment of mesne profits and for that purpose the preliminary decree being reopened and mesne profits being provided for. It is well settled that there can be more than one preliminary and more than one final decree. It was observed by a Bench of this court in the decision in Kasi v. Ramanatha Chettiar (1947) 2 Mad LJ 523 at p. 526, as follows-

(2.) AS was held in the Full Bench decision above referred to, unless the plaintiff's prayer for mesne profits had been specifically considered and refused, it was open to the court to entertain a subsequent application for mesne profits after the passing of the preliminary decree and before the passing of the final decree. I should say that in this case where the preliminary decree provides for ascertainment of mesne profits and the final decree does not provide for mesne profits, it would be open to this court to pass another final decree after ascertainment of mesne profits. A suit cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. In the present case the preliminary decree having provided for ascertainment of mesne profits and its being not having provided for mesne profits it is open to the court to ascertain it and pass another final decree. There is nothing to prevent such a course being adopted by the court.

(3.) I cannot accept the argument on behalf of the respondent that because the final decree already passed does not provide for mesne profits the plaintiff's prayer for mesne profits should be deemed to have been refused. That matter was never under consideration at the stage of the earlier final decree. The view of the lower appellate court is therefore wrong and the order of the trial court will be restored. There being no dispute that the quantum of mesne profits provided for by the appellate court is not correct the order of the trial court will be restored. The respondent will pay the appellant's costs. Leave granted.