KUDAPA SUBBANNA Vs. GHITTURI SUBBANNA

JUDGEMENT

(1.) The Order of the Court was made by Chandra Reddy, C.J.-We are told that there is conflict between Subbanna v. Subbanna , (1959) 2 An.W.R. 546 : 1959 A.L.T. 207) on the one hand and Godavarti Raja v. Ramachandraswami , (1943) 1 M.L.J. 253 : A.I.R. 1943 Mad 354 Venkata Kumar a v. Subbayamma , A.I.R. 1915 Mad. 226 and also other decisions of other High Courts on the other, on the interpretation of Order 20, rule 12, Civil Procedure Code. To resolve this conflict this matter will be placed before a Full Bench. In pursuance of the above Order, this appeal came on for hearing before the Full Bench; the Judgment of the Full Bench was delivered by Chandra Reddy, C.J.--The question to be answered by the Full Bench is as to whether mesne profits could be allowed for more than three years from the date of the decree.

(2.) The facts necessary for the present purpose may be briefly narrated. An action was laid in the Court of the Subordinate Judge, Eluru, for possession of the A and C schedule properties annexed to the plaint and for partition and possession of 1/24th share in the B schedule properties. During the pendency of the suit, the plaintiff died and the second plaintiff, her husband, was added as the legal representative. That suit was dismissed for reasons which need not be set out here. The second plaintiff carried an appeal to the High Court of Madras, A.S. No. 353 of 1933.

(3.) In March, 1938, the High Court reversed the judgment of the trial Court and granted a decree in favour of the appellant. The decree inter alia directed the lower Court to make an enquiry as to mesne profits from the date of the institution of the suit and to pass a final decree for the payment of the amount that may be found due upto the date of delivery of possession to the plaintiff. In 1940, he filed I.A. No. 429 of 1940 for ascertainment of mesne profits and, during the pendency of it, he applied in E.P. No. 29 of 1940 for delivery of A and C schedule properties and for the appointment of a Commissioner for partitioning the B schedule properties. I. A. No. 429 of 1940 was struck off after accepting security from the defendants for the mesne profits to be determined later on. In accordance with the orders passed in E.P. No. 29 of 1940, the appellant obtained delivery of possession of the A and C schedule properties. The judgment debtors carried an appeal against the order in E.P. No. 29 of 1940 to the High Court of Madras and obtained stay of further proceedings. Subsequently, on an application by the appellant complaining that he was disposed immediately after the properties were delivered to him, fresh delivery was ordered by the Court on 31st August, 1946, but it was actually effected in October, 1951. Meanwhile, the appellant filed I.A. No. 558 of 1945 for revival of I.A. No. 429 of 1940 and for the ascertainment of mesne profits upto 1946. The executing Court determined mesne profits for 17 years from 1926 to 1943 and the profits for the period 1943 to 1946 were left out because an appeal was pending in the High Court against the order of fresh delivery. The judgment-debtors went up in appeal against this determination of the executing Court and the second plaintiff preferred a Memo of Cross-Objections. A Bench of this Court dismissed the judgment debtors' appeal and allowed the Cross-Objections filed bv the second plaintiff to some extent.