(1.) An interesting question arises in this Review application. The petitioner is the first defendant in 0 S No. 44 of 1971 on the file of the Subordinate Judge, Kakinada. The respondents- plaintiffs filed a suit for possession of 34 acres 13 centsof land and for damages. They also claimed future profits. The suit was decreed on 18-7-73. A sum of Rs. 2,050/- was awarded towards damages. The decree was silent about future profits, The defendants carried the matter in Appeal No. 249 of 1973 to the High Court. While the appeal was pending, the plaintiffs moved the trial Court under Section 152 CPC in I A No. 1824 of 1973 contending that the decree was not in conformity with the judgment. Their case was that in Para 50 of the Judgment it was said that the suit was decreed "as prayed for" which meant that the suit was decreed for possession as well as future profits as there was a claim for future profits in the plaint, and that by a mistake, the same was not incorporated in the decree. I A No. 1824 of 1973 was dismissed on 8-8-74 by the trial Court with an observation that the plaintiffs can pursue their remedies in higher Courts and get the judgment and decree amended suitably The Appeal No. 249 of 1973 preferred against the decree was disposed by a Single Judge of this Court on 28-1-76. The appeal was allowed in part and the decree for possession was modified to 22 acres as against 34 acres 13 cents granted by the trial Court and the plaintiffs were awarded future profits "from the date of dispossession January, 1970". The plaintiffs as well as the defendant preferred Letters Patent Appeal Nos. 111 of 1976 a nd 2 of 1977 under Clause 15 of the Letters Patent and the same were dismissed by a Division Bench of this Court on 11-3-77 After the disposal of the L P As the plaintiffs filed I A No. 4108 of 1977 under Order 20 Rule 12 of the CPC in the trial Court for ascertaining the mesne profits. After conducting an enquiry, the Commissioner submitted a report on 30-3-82. The defendant filed her objections and after hearing both parties orders were reserved. At that stage, the defendant filed CMP No 11075 of 1982 in LPA No. 2 of 1977 contending that the learned Single Judge erroneously granted a decree for mesne profits, though the plaintiff had not appealed against that part of the decree of the trial Court declining to grant future profits: It was also contended that the date January. 1970 from which mesne profits were granted is an obvious error as even according to the plaintiffs the were dispossessed only on 28-2-1971.
(2.) In the counter, the plaintiffs have taken a peeminary objection that the petition filed under Section 152 of C P C is not maintainable as the said provision applies only to cases where the decree is not in conformity with the judgment and that this is not a case of any accidental omission or error or mistake and if at all, the defendant's remedy is only to seek for a review of the judgment. Then the defendant filed this application for review along with a petition to condone the delay of 297 days. The defendant states that she did not have proper assistance and advice, that her husband died some time back, that her Advocate who was conducting the litigation in the lower Court also died, that the Lawyer engaged subsequently, realised the mistake only at the time of arguments in I A No 4108 of 1977 filed for mesne profits, that immediately thereafter an application C M P No 11075 of 1982 was filed for amendment of the decree and since an objection was taken as to the maintainability of the petition she filed this review application. As regards the Review Petition, the learned Counsel submitted that after the judgment and decree in A S No 249 of 1973, the defendant carried the matter in appeal L P A No 2 of 1977 and that in the said L P A a specific ground was taken that the award of mesne profits is untenable, that it was beyond the jurisdiction of the Appellate Judge to grant mesne profits in the absence of an appeal by the plaintiff, that the ground was not urged at the time of hearing by a mistake on the part of the Counse! and Counsel's mistake is a good ground for review. On merits, It was contended that the Appellate Court had no power to grant a decree for mesne profits in the absence of an appeal in that regard.
(3.) The plaintiffs resisted these applications on three main grounds namely, that the delay is not satisfactorily explained, that there are no grounds for admitting the review petition as there is no material to show that this point was not argued by the Adovcate by inadvertence or mistake and even on merits, the defendant had no case as the order of the single judge which was confirmed by the Dvision Bench is in accordance with law and that future mesne profifs can be granted at any stage during the pendency of a suit.