C VASANTHA Vs. S C PANDIAN

JUDGEMENT

(1.) THIS appeal is against the order of Sethuraman J. dated 10-4-1974. The appellant, as plaintiff in C. S. No. 70 of 1968, filed an application under rder XX, rule 12, C. P. C. , and Bought for an enquiry into the mesne profits of the suit property admittedly in the possession of the respondent, from the date of occupation till the data of delivery of possession.

(2.) CERTAIN relevant facts which led to the application may be noticed. Initially there was a controversy as to whether the plaintiff was entitled to the suit property. The plaintiff based her title on the Will of one Solachi dated 4-121961. This was resisted by Solachi's husband who set up another Will dated 161-1962 of his own wife. A contest therefore ensued between the plaintiff and her sister as legatees under the Will of Solachi dated 4-l2-1961, as propounded by them and the claim of Ramiah based on the will dated 16-1-1962 again said to be the Will of the same Solachi. On a full enquiry this court in T. O. S, No. 10 of 1963, granted Letters of Administration with the will annexed, to the plaintiff by its order dated 27-9-1965. In the course of the testamentary proceedings as above, earlier, the husband of Solachi is said to have leased out the property to the defendant for a period of 5 years. After being successful in the grant of letters of Administration in her favour, the plaintiff instituted tha present action (C. S. No, 70 of 1968 on the file of this court) for recovery of possession of the suit property and for mesne profits at the rate of Rs. 1,100 per mensem from 15-8-1964, the data when the defendant was inducted into the property by ramiah and for other reliefs. On 18-2-1972 an ex parte decree was passed since the counsel appearing for the defendant reported 'no instructions'. On 173-1972, the defendant filed an application No. 812 of 1972, for setting aside the ex parte decree and sought for stay of execution of the decree till then. During the pendency of this application to set aside the ex parte decree, the plaintiff (decree-holder), pursuant to her rights, filed an application for an enquiry into the future mesne profits, i. e. , for the period subsequent to the original suit till the date of delivery of possession. It is common ground that this application under Order XX Rule 12, C. P. C. , was filed at a time when the application to set aside the ex parte decree was pending. Thereafter, the court which enquired into the application to set aside the ex parte decree passed certain orders from time to time granting some more time to the defendant to deliver vacant possession, but at the same time, making sure that the plaintiff was paid and compensated for such occupancy by the defendant during the period when he obtained a relief regarding his continuance in the property. The first order which is referable and the gist of which ought to be excerpted so as to understand fully the scope of the contentions between the parties is as follows:--

(3.) THE above narration became necessary because it would be useful to refer to them in the course of our judgment while setting out and meeting up the arguments of counsel.